Property Law Second Term - FREEHOLD COVENANTS Flashcards Preview

Law First Year > Property Law Second Term - FREEHOLD COVENANTS > Flashcards

Flashcards in Property Law Second Term - FREEHOLD COVENANTS Deck (66):
1

What does Halsall v Brizell say about mutual benefit and burden?

You can receive the benefit if you take on the burden of the positive covenant

2

Newton Abbot v Wiliamson on requirement 1 of burden of negative FCs

Not use premises as ironmongers

2

Thames mead Town v Allotey requirements for mutual benefit and burden

Benefit is conditional on performing burden and you have a choice about whether to accept

3

To ensure the benefit of a FC always transmits, what might you need and according to what case?

Chain of assignment, Re Pinewood Estates

3

What case gives the requirements for a building scheme to allow the benefit of FCs to pass?

Reid v Bickerstaff

4

London County Council v Allen on requirement 3 of burden negative FCs

Need land adjacent to ST such that enforcing will benefit DT

4

What case can be contrasted with Newton Abbot to highlight the difference between easements and FCs?

Hill v Tupper --> only benefitted business, not land

4

What case gave the requirements for mutual benefit and burden?

Thames mead Town v Allotey

4

What case says that there needs to be a wider understanding of community interest for the benefit of an FC to pass in a building scheme?

Re Dolphin's Conveyance

5

How can the difficulties of freehold covenants be avoided?

s.16 Commonhold and Leasehold Reform Act 2002

6

Tulk v Moxhay

Burden can transmit to successors of an ST, Leicester square

7

why have certain attempts to use s.79 LPA failed for burden of negative FCs?

Burden does not run if the covenant is personal

7

Jaggard v Sawyer on burden relating to land

Using land as a garden

7

S.78 cannot be excluded because allowance for contrary intention in s.79

Roake v Chadham

9

How can the benefit of an FC be annexed expressly?

Seller says at some point the benefit is to run with the land

9

Why would the outcome of London County Council v Allen be different now?

Local authorities can enforce covenants without dominant land, granted by statute

9

How can a positive covenant be protected?

Entry of notice (s.32 and s.33 LRA)

10

S.79(1) LPA

Burden of negative covenants deemed to run without contrary intention

11

Morrells Oxford v Oxford United requirement 2 burden negative FCs

'Rebuttable presumption' that covenants are intended to run

11

Refusing to pay to maintain and repair sewers

Thamesmead Town v Allotey

12

Need a deed to identify the relevant land for s.78 LPA

Cres Nicholson v McAllister

13

How can a covenant be created?

Signed writing (s.53(1) LPA) and signed contract (s.2LP(MP)A) or proprietary estoppel

13

How can you abolish a covenant?

Through s.84 LPA

14

Why is the 2nd requirement of mutual benefit and burden doubted?

In Halsall, no choice about sea wall

16

What is the statutory method of annexation for the benefit of an FC?

S.78(1) LPA

16

Why is there no freehold title in flats?

Burden of positive FC can't be implied further than original owner

18

What does Jaggard v Sawyer give as the default remedy for freehold covenants?

Injunction

19

what is the contractual method for transmitting burden of positive FC?

Chain of indemnity through a contract

21

Re Dolphins Conveyance (building schemes, benefit of FCs)

Only need an understanding of wider community interest

22

How could a vendor use LRA to ensure burden of positive covenants passes upon salle?

S.40 LRA restriction to require purchaser to enter into a positive covenant as part of the purchase

22

Holiday homes

Wilkinson v Kerdene

24

Why was an injunction not given in Jaggard?

Too oppressive

25

Halsall v Brizell

Estate shared facilities

26

Roake v Chadham

Cannot be excluded because allowance for contrary intention in s.79

28

What is a possible contractual solution to the timing issue for benefits of FCs in building schemes?

S.56(1) LPA (need a deed) and s.1 C(RoTP)A

29

Cres Nicholson Residential v McAllister

Deed must describe land so it would be easily ascertainable for s.78(1)

30

What does s.84 LPA do?

Allows you to abolish a covenant

32

Newton Abbot v Williamson on requirement 3 burden negative GC

Upjohn thought no compete clause benefits owner and land - need to affect 'either the value... or the method of its occupation'

33

What are the three requirements for the burden of a negative FC to run?

Relates to land, intended to run, dominant land capable of benefitting and negative covenant

34

In what report did the Law Com propose the introduction of 'land obligations' instead of positive/negative covenants

No.327

36

Federated Homes v Mill Lodge on s.78(1) LPA

Annexes all positive and negative benefits of FC

37

What is the effect on the LPA of Report No.327

If imposed, would need to amend s.1 LPA to make land obligations (positive and negative burden and benefit FC) legal interests.

38

S.78 annexes all positive and negative benefits of FC

Federated Homes v Mill Lodge

40

Federated Home v Mill Lodge on requirement 1 of burden of negative FCs

Not build more than X houses

41

In what case did the court make it clear they would not overturn a century of orthodoxy and all the burden of positive covenants to run?

Rhone v Stephens

43

Reid v Bickerstaff on building schemes and benefit of FCs

need a defined area of land and an intention that covenants are for the common benefit of all

44

Who highlighted identifying land to be benefitted for the purposes of s.78 LPA can be problematic?

Howell

45

Jaggard v Sawyer

Cul-de-sac covenant for garden

46

London County Council v Allen

Roadway

48

What are the three methods of transmitting the benefit of a covenant?

Assignment, annexation and building schemes

49

Who highlighted that Federated Homes' interpretation of s.78 LPA is not at odds with s.79?

Snape

50

How does Re Dolphins Conveyance qualify the requirements given in Reid v Bickerstaff?

Reid said need an intention to benefit all - RDC says understanding of wider community interest

52

Reid v Bickerstaff on duties for benefit of FCs

Not required that all owners are subject to the same duties

54

Newton Abbot v Williamson

Devonia ironmongers

55

What are the three methods of transmitting the burden of a positive FC?

Contractual, estate rent charges or mutual benefit and burden

56

Rebuttable presumption for s.79 that the negative burden is intended to pass

Morrells Oxford v Oxford United

57

What case says that there is no need to register mutual benefit/burden as they do not create estates/interests in land?

Elwood v Goodman

58

What does Elwood v Goodman say about mutual benefit and burden and protection?

No need to register them - no do not create an estate/interest

59

What if the servient land of the negative covenant is unregistered (for registration)?

Use a Class D(iii) Land Charge

60

Wilkinson v Kerdene

Holiday cottage

61

What is the remedy for covenants are personal contactual obligations?

Can be enforced at law OR equity (claim in damages)

62

What is the argument about s.79(1) LPA and positive FC burden?

Doesn't exclude burden of positive covenants being annexed

63

How did Wilkinson v Kerdene stretch requirement 1 of mutual benefit and burden?

stretched conditionality so you only need to receive part of the benefit to be liable for entire burden

64

How must a NEGATIVE freehold covenant be protected if STO is UNREGISTERED?

Class D(iii) Land Charge

65

When does a Class D(iii) Land Charge need to be used?

When the STO is unregistered for FC

66

Do FCs operate at law or equity?

EQUITY