Freehold Covenants

Question 1

Definition

Answer 1

A promise generally contained in a deed from one freehold owner to another freehold owner to do/not do something on their land. Enforceable without consideration

Question 2

Transmission of burden at equity

Answer 2

Tulk v Moxhay:

• covenant must be negative
• must accommodate the dominant tenement
• original parties intended the burden to run
• notice

Question 3

Negative covenants - hand in pocket test

Answer 3

Haywood v Brunswick

Question 4

Where covenant contains positive and negative undertakings, it may be possible to sever the positive undertaking from the negative. Both parts must be capable of standing alone

Answer 4

Shepherd Homes v Sandham (No 2)

Question 5

Where covenant contains positive and negative undertakings, it may be possible to construe the covenant as a positive covenant overall, with a negative condition (vv)

Answer 5

Powell v Hemsley

Question 6

Covenant must accommodate the dominant tenement

Answer 6

• covenantee and successor must have retained interest in the land at the date of the creation and enforcement of the covenant respectively - LCC v Allen
• Covenant must touch and concern the land
• servient and dominant lands must be sufficiently proximate to each other - Bailey v Stephens

Question 7

Covenant must touch and concern the land

Answer 7

Dominant land must benefit from the covenant, not a mere personal privilege

P&A Swift - affects nature, quality, mode of use or value of dominant land; not expressed to be personal; payment of money does not prevent it touching and concerning land

Wrotham v Parkside - any activity on neighbouring land is likely to affect the dominant land

Question 8

Original parties intended the burden to run

Answer 8

Intention to bind future successors of the servient land may be express or implied under s79 LPA/Morrells of Oxford (unless contrary intention expressed)

Question 9

Purchaser of servient land must have notice of covenant to be bound by it

Answer 9

Registered land - notice on charges section of servient property - s32 LRA - if entered, binding on everyone; if not, purchaser for valuable consideration will take free from it (s29 LRA), donee will be bound

Unregistered land

• pre-1926 covenant - doctrine of notice
• post-1926 covenant must be registered as Class D(ii) land charge under LCA 1972. Registration gives requisite notice (s198 LPA); if not registered, it is void against a purchaser for money/money’s worth of a legal estate - s4(6) LCA

Question 10

If burden does not run, the covenant is lost forever and cannot be revived

Answer 10

Wilkes v Spooner (unregistered land, presumed the same for registered)§

Question 11

Benefit at Equity

Answer 11

• Covenant must touch and concern the land
• Successor in title must have become entitled to benefit either by annexation, assignment or a scheme of development (Renals v Cowlishaw)

Question 12

Annexation

Answer 12

Benefit tied to land when covenant made -automatically passes:

• express -language must be sufficiently clear (Rogers v Hopwood)
• implied (rare) - Newton Abbot v Williamson & Treadgold
• statute - s78(1) LPA

Question 13

Annexation will not fail if area of land is too large - covenant capable of benefitting 7500 acre plot of land

Answer 13

Marten v Flight Refuelling

Question 14

Covenant that is annexed to the whole is also annexed to the part

Answer 14

Federated Homes v Mill Lodge

Question 15

s78(1) LPA is sufficient to annex benefit to land; express annexation not required

Answer 15

Federated Homes v Mill Lodge

Question 16

s78(1) can be expressly excluded

Answer 16

Roake v Chadha

Question 17

Deed must make clear reference to the land which is benefitted

Answer 17

Crest Nicholson

Question 18

Pre-1926 covenant must be expressly annexed

Answer 18

Small v Oliver and Saunders

Question 19

Assignment

Answer 19

• express
• land must be identified and assignment made at time of conveyance (Miles v Easter)
• assignment must comply with s53(1)(c)
• must be repeated every time land sold/given away

Question 20

Scheme of development

Answer 20

Elliston v Reacher

• both C and D derive title from common vendor
• prior to sale of both plots, vendor subject both plots to similar covenants and intended them to be imposed on all plots
• restrictions intended to benefit all the plots sold
• C and D bought on the basis that restrictions would benefit all plots

Question 21

Benefit at common law

Answer 21

• express assignment under s136 LPA as a chose in action: must be in writing and notice in writing of assignment given to original covenantor

Question 22

Implied passing of benefit at common law

Answer 22

P & A Swift:

• touch and concern land
• original parties intended benefit to run with covenantee’s land (express; implied under s78(1) LPA
• covenantee held legal estate at the time the covenant was made
• successor in title to covenantee holds legal estate in land

Question 23

Successor does not need to hold same legal estate as the original covenantee

Answer 23

Smith & Snipes Hall Farm v River Douglas

Question 24

Burden at common law

Answer 24

Burden never passes - Austerberry v Oldham Corporation, confirmed in Rhone v Stephens

Question 25

Pursue the original covenantor

Answer 25

Original covenantor remains liable - express of implied in s79(1)

Question 26

s79(1) does not make successors liable but makes original covenanter should liability even after he has parted with his interest

Answer 26

Tophams v Earl of Sefton

Question 27

Burden at common law - exception

Answer 27

Halsall v Brizell:

Where deed grants benefit in the nature of a service or facility, but also imposes a connected burden, servient owner cannot taken the benefit and ignore the burden but can choose to reject both.

BUT if no real choice but to take benefit (e.g. private road is sole means of access to property), usual common law rules apply and burden will not pass

Question 28

There must be a correlation between the benefit and the burden

Answer 28

Rhone v Stephens

Question 29

Damages in lieu of injunction

Answer 29

Wrotham Park Estate

Question 30

Extinction/modification of restrictive covenants

Answer 30

Agreement - express of implied by use
Declaration by court - s84(2) LPA
Discharge by Upper Tribunal (Lands Chamber) - s84(1) LPA

Question 31

Covenant not to compete with neighbour’s business may touch and concern land

Answer 31

Newton Abbot v Williamson & Treadgold