Rules for the passing of the benefit and burden of freehold covenants (Proprietary Rights - Co-ownership and Trusts)-fs Flashcards
(16 cards)
What is the general rule for the burden of a positive covenant in freehold land?
The burden of a positive covenant does not automatically pass to successors in title. A buyer of the land is generally not bound by a positive obligation made by the previous owner.
What is required for the benefit of a positive covenant to pass at law?
- The covenant must touch and concern the land.
- The claimant must hold a legal estate in land.
- The benefit must be annexed to the land, either expressly or impliedly.
- The covenant must be registered (where applicable)
Definition: Positive Covenant
A positive covenant requires a party to take action or spend money, such as maintaining a shared structure. These do not bind future owners unless specific mechanisms (e.g., chain of indemnity or mutual covenants) are used.
Under what condition does the burden of a restrictive covenant pass to successors in title?
If all the following criteria are met:
- The covenant is negative in nature (restrictive).
- It touches and concerns the land.
- It was intended to benefit the land of the covenantee.
- The burden was intended to run with the land.
Definition: Restrictive Covenant
A restrictive covenant prohibits certain uses of the land (e.g., not playing music after 10 p.m.). These can pass to successors in title if the proper legal requirements are satisfied.
What statutory provision deems a covenant to be made with successors in title?
A: Section 78 of the Law of Property Act 1925 – A covenant relating to land is treated as made with the covenantee and their successors in title.
Why must a restrictive covenant be registered?
Because restrictive covenants are equitable interests, registration under Section 32 of the Land Registration Act 2002 is required to ensure enforceability against future owners.
Do the same rules apply to leasehold covenants?
No. For leasehold covenants, whether a positive or negative covenant runs with the lease depends on the terms agreed between buyer and seller, not the same tests as for freehold land.
What does “touch and concern the land” mean in the context of covenants?
A covenant “touches and concerns the land” if it affects the nature, quality, mode of use, or value of the land itself, rather than just the personal interests of the parties.
What is meant by ‘express annexation’ in passing the benefit of a covenant?
Express annexation occurs when the wording of the covenant clearly links the benefit to the land of the covenantee or their successors, such as “to the benefit of the owner of [address].”
What happens when the burden of a restrictive covenant is not registered?
If a restrictive covenant is not registered on the title of the burdened land, it will not bind a purchaser for value of that registered land.
Can the burden of a positive covenant ever be enforced against a successor in title?
Not automatically. Unlike restrictive covenants, the burden of positive covenants generally does not run with freehold land unless alternative legal mechanisms (like indemnity covenants) are used.
What is required for a restrictive covenant to be enforceable against a new owner?
- The covenant must be restrictive in nature.
- It must touch and concern the land.
- It must have been intended to benefit the covenantee’s land.
- It must have been intended to run with the land.
- It must be registered (for registered land).
Definition: Annexation of Covenant
Annexation refers to the attachment of the benefit of a covenant to land, so that successors in title can enforce it without express assignment.
What is the consequence of a covenant not being annexed to the land?
If a covenant’s benefit is not annexed, it may not pass to the successor in title, meaning they cannot enforce it unless expressly assigned.
Why must you distinguish between leasehold and freehold covenants?
The rules differ: leasehold covenants pass according to the agreement between parties, whereas freehold covenants must meet strict legal requirements to pass with the land.
