Restrictive Covenants Flashcards
(59 cards)
What is a restrictive covenant in land law?
A contractual promise limiting land use, enforceable in equity (Tulk v Moxhay).
Who is the covenantor?
The party promising to do or not do something on the land.
Who is the covenantee?
The party receiving the benefit of the covenant.
What case established the enforceability of restrictive covenants in equity?
Tulk v Moxhay [1848] 41 ER 1143.
Do burdens of positive covenants run with the land at common law?
No, only burdens of restrictive covenants may run in equity.
Which case confirmed burdens of positive covenants do not run?
Austerberry v Corporation of Oldham.
Give an example of a restrictive covenant.
A promise not to build a factory on land to preserve its use.
What is required for a restrictive covenant to bind future owners?
It must touch and concern the land and the buyer must have notice.
What statute in Guyana requires registration of restrictive covenants?
Section 111 of the Land Registry Act (Cap 5:02).
Why is Tulk v Moxhay significant?
It established that restrictive covenants may bind successors in equity.
What is privity of contract in the context of covenants?
It is a contractual relationship where all covenants can be enforced by or against the original parties due to the existing contract. (Owusu, p. 459)
What does ‘absence of privity of contract’ mean in property law?
It means that one or more parties were not part of the original covenant agreement, yet enforcement may still occur through doctrines like benefit and burden running with the land.
Under common law, when does the benefit of a covenant pass to a successor-in-title?
When the covenant touches and concerns the land,
the covenantee held a legal estate when created, and
the successor holds a legal estate benefiting from the covenant.
What case established that a covenant touching and concerning the land can be enforced by successors?
P & A Swift Investments v Combined English Stores [1989] AC 632
What principle did Federated Homes Ltd v Mill Lodge Properties Ltd [1980] establish?
That the benefit of a covenant is automatically annexed to land under Section 78 of the Law of Property Act 1925 unless otherwise stated.
What is the general rule regarding the burden of a covenant at common law?
The burden of a covenant does not run with the land. (Austerberry v Oldham Corporation, 1885)
What are the requirements for the burden of a covenant to pass in equity under Tulk v Moxhay?
The covenant must be negative, benefit identifiable land, be intended to bind successors, and the successor must have notice of it.
What does the doctrine of mutual benefit and burden entail?
If a successor takes the benefit of a covenant (e.g., right of way), they must also accept the burden (e.g., maintenance cost). (Halsall v Brizell, 1957)
What are the two critical questions in determining enforceability of a covenant in the absence of privity?
- Does the benefit pass to the plaintiff?
- Does the burden pass to the defendant?
How does Guyanese law treat covenants in property law?
Guyanese law adopts English common law and equity through the Civil Laws Ordinance, making cases like Tulk v Moxhay applicable.
What is the general rule at common law about the burden of covenants?
The burden of a covenant does not run with the land at common law (Austerberry v Oldham Corporation).
Under what conditions can the burden of a restrictive covenant run in equity?
1) Covenant is negative in nature, 2) Benefits identifiable land, 3) Intended to bind successors, 4) Purchaser has notice (Tulk v Moxhay).
What case confirmed that restrictive covenants bind successors in equity if the covenant benefits land and notice exists?
Tulk v Moxhay (1848)
What is the servient tenement in the context of restrictive covenants?
The land which carries the burden of the restrictive covenant.
