Flashcards in Land - Freehold Covenants Deck (22)
Smith and Snipes Hall Farm
Common law benefit of covenants must touch and concern the land
Must effect mode of occupation and value of land
Rogers v Hosegood
For express annexation need a clear intention to benefit the dominant land subsequently purchased. The fact the purchaser of the dominant land is not aware of this at the time was irrelevant
Re Ballard's Conveyance
Suggested that express annexation might not be effective when size of dominant land is extensive
- has relaxed more now
Marquess of Zetland v Driver
Wording of the covenant must be clear as to whether covers whole or any part of the land. A later purchaser of part of the dominant land would be unable to claim benefit of a covenant that had been annexed to the whole.
Federated Homes Ltd v Mill Lodge Properties suggest this is no longer the case
Federated Homes Ltd v Mill Lodge Properties
Reinterpreted s78 LPA. The owner of the land can enforce the covenants themselves, not rely on the original covenantor to do it for them under common law.
Even though does not expressly mention successors, automatic statutory annexation takes place as long as the covenant touches and concerns the land and clearly identifies the benefited land. In equity.
Small v Oliver Saunders
Followed the reasoning that statutory annexed covenants are annexed to each and every part of the dominant land but raised the possibility that evidence of contrary intention can rebut the presumption. Confirmed in Rees v Peters.
Crest Nicholson Residential v McAllister
Statutory annexation only applies when the land intended to be benefited is identified in the document creating the covenant. Ie location and extent in deed or plans to the original conveyance.
If not, s 78 will not assist
Roake v Chadha & Anor
S78 can be excluded expressly by stipulating that the benefit will not pass unless the covenantee expressly chooses to assign it.
Mahon v Sims
The appropriate person to enforce the covenant is the original owner of the dominant land, rather than the original covenantee.
Oxford United Football Club
Where covenant in question is silent or there is contrary intention (implied, inferred from facts or expressed) - s79 will not apply.
Austerberry v Corporation of Oldham
The burden cannot run with the servient land. The burden remains personal to the original covenantor at common law.
Consistently applied - Rhone v Stephens entrenched.
Halsall v Brizell
A person who wishes to take advantage of the benefit of an EASEMENT must also comply with any corresponding obligation (burden).
The doctrine of mutual benefit and burden
Thamesmead Town v Allotey
If the successor in title chooses not to take the benefit of the EASEMENT, the burden of the corresponding covenant is not assumed eithet
Tulk v Moxhay
Covenants can be mixed positive and restrictive.
The burden CAN run with the land in equity if satisfies all 4 requirements
- the covenant must be restrictive in substance
- the covenantee must at the time of the creation of the covenant have owned land for the protection of which the covenant is made. (original covenantee owned land).
- the burden of the covenant must have bern intended to run with the covenantor's land
- the owner of the servient tenement must have notice of the covenant for it to bind him.
London CC v Allen
Could not enforce the covenant as LCC did not own the benefited land at the time the covenant was made.
Re Royal Victoria Pavilion Ramsgate
S79 can be excluded with contrary intention shown.
Gafford v Graham
Example of acquiescence.
Injunctions given at court discretion - equity
Will not be granted if claimant has acted inequitably.
Did not take legal action to stop development at first opportunity.
Waited until work was complete.
Harris v Williams-Wynne
A mere delay will not amount to acquiescence.
Requires action or inaction which results in a detriment to party in breach
Martin v David Wilson Homes
"a" dwelling house did not carry implications of singularity.
Parsons v Thatcher Eood Residents Company was decided the opposite way.
Re Bailey's Application
Court can take different approaches - refused to alter the rural character of land with a riding school. Money would not be adequate compensation
Re University of Westminster
Modification of the covenant was allowed. Wording of covenant altered from specific building uses to "general educational purposes"