Freehold Covenants

Question 1

What is a covenant?

Answer 1

A promise to do or not do something. Can be either negative or positive

Question 2

Formalities

Answer 2

• S1(1) LPA 1925 - A covenant is not a legal interest in land. Equitable interest.
• S53(1)(a) LPA 1925 - Must be made in signed writing. Does not have to be deed, but generally is.

Question 3

Terminology

Answer 3

• Covenantor - Person who makes the promise
• Covenantee - Person who receives the benefit of the promise
• Dominant land - Land which is benefited by the covenant
• Servient land - Land which is burdened by the covenant
• Successor - Person who acquires land from either covenantor or covenantee

Question 4

Express assignment at common law

Answer 4

• S136 LPA 1925 - Benefit can be passed at common law
• Requires evidence in writing
• Requires notice to covenantor

Question 5

Implied assignment at common law

Answer 5

Implied assignment is possible at common law, rules come from P & S Swift v Combined Investments

Question 6

Rules for passing benefit at common law through implied assignment;

Answer 6

P & A Swift Investments;

• Touch and concern land
• Intended burden to pass
• Covenantee held legal estate at time of covenant
• Successor holds legal title

Question 7

Touch and concern land

Answer 7

P & A Swift;

• Covenantee would cease to benefit if no longer owner of land
• It affects the nature, quality, value or mode of user
• It is not expressed to be personal

Question 8

Hill v Tupper

Answer 8

A covenant which is only relevant to the person not the land is a personalty and will not pass as does not touch and concern the land.

Question 9

Newton Aboot v Williamson Goldtread

Answer 9

A covenant not to set up a rival business will affect the land as any rival business would detract from the value of the land

Question 10

Wrotham v Parkside

Answer 10

Negative covenants can generally be viewed as beneficial to the dominant land, as a restriction on the neighbours land will generally confer a benefit to the dominant land regardless of the content of the covenant

Question 11

S78(1) LPA 1925

Answer 11

Implied intention for the benefit to run

Question 12

Smith v Snipes

Answer 12

Successor can hold land in different form provided it is a legal estate. Could hold as lease when originally granted as freehold

Question 13

Austeberry v Oldham

Answer 13

The burden does not pass at common law

Question 14

Rhone v Stephes

Answer 14

COnfirmed that the burden does not pass at common law

Question 15

Topham v Earl of Sefton

Answer 15

As the burden does not pass at common law the original covenantor remains liable for any breaches of covenant

Question 16

Halsall v Brizell

Answer 16

Exception to the rule that the burden does not pass at common law. The burden will pass according to the doctrine of mutual benefit and burdn

Question 17

Rhone v Stephens (2)

Answer 17

Must be a very close link between the benefit and burden for the rule in halsall v Birzell to apply

Question 18

Thamesmead v Allotey

Answer 18

There must be a choie whether to use the benefit or not

Question 19

Tulk v Moxhay

Answer 19

Laid out the conditions for the burdem to pass at equity;

1. Covenant must be negative
2. Covenant must sccomodate the dominant tenement
3. Burden must be intended to run
4. Notice

Question 20

Haywood v Brunswick

Answer 20

Test to see if the covenant is negative, hand in pocket test

Question 21

Shepherd Homes v Sandham

Answer 21

If covenant can be split into negative and positive elements then the negative element will be enforced

Question 22

Powell v Hemsley

Answer 22

If the covenant is mixed and cannot be split then the covenant will be judged to be overall positive or overall negative , and then enforced or not accordingly. If the positive element is a condition of the negative covenant then it will be overall a negative covenant. In this case a covenant not to build without submitting plans was held to be overall negative as the positive element (building plans) was just a condition of the overall negative covenant not to build

Question 23

Rhone v Stephens (3)

Answer 23

Equity cannot enforce positive covenants

Question 24

What are the elements of the ‘dominant tenement’ test?

Answer 24

P & A Swift - Touch and concern
Bailey v Stephens - Proximity
LCCv Allen - When the covenant was created there must have been a dominant tenement and there must be a dominant tenement to enforce the covenant at the point of enforcement

Question 25

Burden intended to run

Answer 25

- Express wording | - Implied from S79 LPA 1925

Question 26

Morrels v Oxford

Answer 26

S79 LPA 1925 can be rebutted where a contrary intention is evidenced

Question 27

Registering of covenant in equity

Answer 27

S32 LRA 2002 - Notice on the charges register S29(2) LRA 2002 - If registered binds the world S29(1) - If unregistered then a PFV takes free of the covenant

Question 28

Rules for registering of unregistered land in equity

Answer 28

LCA 1972 S2(5) - Covenant must be registered using a Class D(II) land charge S198 LPA 1972 - If registered will bind the world S4 LCA 1972 - If not registered then doctrine of notice applies

Question 29

Passing of benefit at equity

Answer 29

Covenant must touch and concern the land | Covenantee must be entitled to the benefit

Question 30

Renals v Cowlishaw

Answer 30

3 methods of touching and concerning - Annexation - Assignment - Building scheme

Question 31

Express annexation

Answer 31

Deed can state that the benefit is attached to the land

Question 32

Rogers v Hosegood

Answer 32

Covenant must state that the covenant is for the land itself 'for the benefit of the land itself'

Question 33

Wrotham v Parkside

Answer 33

Covenant is made for every part of the land

Question 34

Statutory annexation

Answer 34

S78 LPA 1925 - Has the effect of automatically attaching the benefit to the land

Question 35

Federated Homes v Mill Lodge

Answer 35

Interpreted S78 to mean that benefit is automatically annexed to the whole of the land

Question 36

GH Newsom

Answer 36

Criticises interpretation in Federated Homes in making annexation automatic, as not parliaments intention

Question 37

Roake v Chadka

Answer 37

s78 LPA 1925 can be excluded, and is not compulsory and can be opted out of. Words used in this case to exclude s78 benefit not attached to land ‘unless expressly assigned’ - The benefit will only pass to those who it is expressly assigned

Question 38

Assignment

Answer 38

Where benefit is expressly assigned every time property changes hands - Requires s53(1)(c) compliance

Question 39

Miles v Easter

Answer 39

Benefit can be ecpressly assigned

Question 40

Building scheme

Answer 40

o Elliston v Reacher; Where the following conditions are met all buyers take subject to a freehold covenant  All purchasers acquire from same vendor  Divided into plots  Covenants intended to continue  Covenant benefits all plots

Question 41

How can covenants be disharged?

Answer 41

- Expressly agree to discharge - Implied by long disusage - 1 party owns both dominant and servient land - S84 LPA 1925 – Court ordered discharge (generally due to changes in the character of the neighbourhood)

Question 42

Shaw v Applegate

Answer 42

Where covenant not used for a while, but not so long so as to fall into ‘disuse’ a remedy of an injunction was not available as covenantee has lulled covenantor into a false sense of security, so only damages were available

Question 43

Crest Nicholson v McAllister

Answer 43

Benefit will not be attached to the land through statutory annexation where the extent of the land benefited is unclear as this would impose too large a burden on the purchaser