Topic 3 - Freehold Covenants

Question 1

What is a covenant?

Answer 1

A promise usually contained in a deed, used for private control of land use

A deed is not essential for a covenant to exist.

Question 2

Who is the covenantee?

Answer 2

The person who receives the benefit of the promise and can sue if the covenant is breached

The covenantee is associated with the dominant land.

Question 3

What is the dominant land?

Answer 3

The land which is benefitted by the promise.

Question 4

Who is the covenantor?

Answer 4

The person who makes the promise and can be sued if the covenant is breached.

Question 5

What is servient land?

Answer 5

The land which is burdened by the promise.

Question 6

What is a positive covenant?

Answer 6

A promise to do something, usually involving expenditure of money

Examples include maintaining a boundary fence or repairing a shared drive.

Question 7

What is a negative or restrictive covenant?

Answer 7

A promise not to do something that restricts the use of the land, complied with by inaction

Examples include not using the land for business purposes or not building above a certain height.

Question 8

What are the legal enforceability conditions for covenants?

Answer 8

The covenant must be in writing and signed by the grantor

Reference: LPA 1925, s 53(1)(a).

Question 9

What is the legal issue with covenants involving successors?

Answer 9

Whether C can enforce the covenants directly against D when the burden and benefit have passed.

Question 10

What are the two sets of rules for passing the burden and benefit of covenants?

Answer 10

Equitable rules and common law rules.

Question 11

What is the ‘hand in pocket’ test?

Answer 11

A test to determine if a covenant is positive by assessing if it requires expenditure of money.

Question 12

What is a mixed covenant?

Answer 12

A promise that has both positive and restrictive elements.

Question 13

What is the general rule regarding the burden of a covenant?

Answer 13

The burden does not pass to a successor at common law

Reference: Austerberry v Oldham Corporation [1885] AC 29 ChD 750.

Question 14

What are the four requirements of the rule in Tulk v Moxhay?

Answer 14

• The covenant must be restrictive
• The covenant must accommodate the dominant tenement
• There must be intention for the burden to run
• There must be notice of the covenant

Question 15

What does it mean for a covenant to ‘touch and concern’ the land?

Answer 15

The covenant must have a direct beneficial impact on the dominant land.

Question 16

What is express annexation?

Answer 16

When the express words of the covenant indicate that the benefit is intended to be part of the dominant land.

Question 17

What is statutory annexation?

Answer 17

A method by which the benefit of a covenant is automatically deemed to pass with the dominant land under LPA 1925, s 78.

Question 18

What is assignment in the context of covenants?

Answer 18

The process of transferring the benefit of a covenant when it has not been annexed at the outset.

Question 19

What must be proven for a successor covenantee to enforce a breach?

Answer 19

Both the burden of the covenant must pass to the successor covenantor and the benefit must pass to the successor covenantee in equity.

Question 20

What does the term ‘covenant must accommodate the dominant tenement’ imply?

Answer 20

There must be an interest in land held by the covenantee and the covenant must touch and concern the land.

Question 21

What is the significance of proximity in covenants?

Answer 21

The dominant land and servient land must be close enough for the dominant land to benefit from the covenant.

Question 22

What does LPA 1925, s 79 imply about covenants?

Answer 22

A covenant relating to land is deemed to be made by the covenantor on behalf of his successors unless stated otherwise.

Question 23

What is the importance of notice of the covenant?

Answer 23

Whether the successor covenantor is bound depends on the proper protection of the covenant by registration.

Question 24

What can be expressly excluded in the transfer of a benefit?

Answer 24

An alternative method of passing the benefit stipulated in the original transfer deed

This refers to the specific provisions within the deed that may allow for different arrangements regarding the benefit.

Question 25

What is the process of assignment in relation to the benefit of a covenant?

Answer 25

The benefit can be assigned when the dominant land is transferred and must comply with LPA 1925, s 53(1)(c): in writing and signed by the person transferring the benefit ## Footnote This means the benefit is treated as a separate interest in the land.

Question 26

What is a building scheme?

Answer 26

A set of covenants applicable to all houses in a new housing estate sold subject to the same covenants ## Footnote Building schemes resolve issues related to restrictive covenants.

Question 27

What are the conditions of a building scheme as established in Ellison v Reacher?

Answer 27

* All buyers buy from the same seller * The seller divided the estate into plots * The covenants were intended to benefit all plots * Each buyer buys on the understanding that the covenants are intended to benefit all plots ## Footnote These conditions allow for the mutual enforcement of covenants.

Question 28

What is the position of the original covenantee when the dominant land is sold?

Answer 28

The original covenantee still has the benefit of the covenant and can sue on it, but it is unlikely they would wish to enforce it ## Footnote This is based on contractual principles.

Question 29

What is the most common remedy for breach of a covenant?

Answer 29

Injunction ## Footnote This equitable remedy can be prohibitory or mandatory depending on the circumstances of the breach.

Question 30

What is a prohibitory injunction?

Answer 30

An order to cease a threatened or ongoing breach of covenant ## Footnote Example: stopping unauthorized use of burdened land.

Question 31

What is a mandatory injunction?

Answer 31

An order requiring a person in breach to take specific action, such as demolishing a building built in breach of covenant ## Footnote Example: ordering the demolition of a structure that violates a covenant.

Question 32

What principle must a claimant adhere to when applying for an injunction?

Answer 32

Delay defeats equity ## Footnote Claimants must act promptly to avoid losing their right to an injunction.

Question 33

What is the general rule regarding the burden of a covenant at common law?

Answer 33

The burden does not pass to a successor at common law ## Footnote This means covenants are unenforceable against a successor in title.

Question 34

What is meant by the continuing liability of the original covenantor?

Answer 34

The original covenantor remains liable for the covenant and can be sued for breaches, even after selling the land ## Footnote This liability is often stated explicitly in the covenant's wording.

Question 35

What is an indemnity in relation to covenants?

Answer 35

An agreement by one party to bear the cost of certain losses or liabilities suffered by another party ## Footnote This is crucial for ensuring that the original covenantor can recover losses from successors.

Question 36

What must be established for the doctrine of mutual benefit and burden to apply?

Answer 36

A clear link between the benefit and burden must exist in the same transaction ## Footnote This allows the burden of a covenant to pass to a successor covenantor under specific conditions.

Question 37

What does the rule in Halsall v Brizell state?

Answer 37

A successor covenantor who takes a benefit must also accept the connected burden ## Footnote This case set a precedent for the doctrine of mutual benefit and burden.

Question 38

What are the two ways the benefit of a covenant can pass at common law?

Answer 38

* Express assignment * Implied assignment ## Footnote Each method has specific legal requirements for enforceability.

Question 39

What conditions must be met for implied assignment of the benefit of a covenant?

Answer 39

* The covenant must touch and concern the land * There must have been an intention that the benefit should run with the dominant land * The original covenantee must have a legal estate in the dominant land * The successor covenantee must hold a legal estate in the dominant land ## Footnote These conditions ensure that the benefit is legally enforceable.

Question 40

What is a covenant drafted ‘for the benefit of land known as 5 High Street’ intended to show?

Answer 40

Express intention ## Footnote Indicates that the original covenantee and successors in title have a legal estate in the dominant land.

Question 41

What must the original covenantee have at the time the covenant is made?

Answer 41

A legal estate in the dominant land ## Footnote The successor covenantee must also hold a legal estate at the time of enforcement.

Question 42

What is the significance of Smith and Snipes Hall Farm Ltd v River Douglas Catchment Board [1949] 2 KB 500?

Answer 42

The case established that different types of legal estates (freehold and leasehold) can enforce a covenant ## Footnote The original covenantee held a freehold while the successor held a leasehold.

Question 43

What does the term 'discharge of a covenant' mean?

Answer 43

It means that the covenant is no longer valid.

Question 44

What does the term 'modification of a covenant' mean?

Answer 44

The scope of the covenant is altered but it is not completely invalidated.

Question 45

What happens when the same person becomes the owner of both the dominant and servient land?

Answer 45

The covenant will automatically be discharged ## Footnote This is known as merger, as illustrated in Re Tiltwood, Sussex [1978] Ch 269.

Question 46

How can a dominant owner expressly agree to discharge a covenant?

Answer 46

By entering into a formal release of covenant, usually in return for a payment.

Question 47

What is implied discharge of a covenant?

Answer 47

The dominant owner does nothing when the covenant is being breached openly.

Question 48

What can a servient owner do if they feel held to ransom by a dominant owner regarding an obsolete covenant?

Answer 48

Apply to the Upper Tribunal (Lands Chamber) for discharge or modification of the covenant.

Question 49

Which legislation gives the Lands Chamber the power to discharge or modify restrictive covenants?

Answer 49

Law of Property Act 1925, s 84(1).

Question 50

What grounds are specified in LPA 1925, s 84(1) for discharging or modifying a covenant?

Answer 50

* It has become obsolete due to changes in character * Its continued existence impedes the reasonable use of the land * The dominant owners expressly or impliedly agree * The dominant owners will not suffer injury.

Question 51

What does LPA 1925, s 84(1)(a) address?

Answer 51

Covenants that have become obsolete due to changes in the character of the property or neighbourhood.

Question 52

What is required to show for a covenant that impedes reasonable use of servient land under LPA 1925, s 84(1)(aa)?

Answer 52

That the covenant confers no practical value or is contrary to public interest.

Question 53

What is the implication of LPA 1925, s 84(1)(b)?

Answer 53

It applies where the dominant owners have expressly or impliedly agreed to discharge the covenant.

Question 54

What does LPA 1925, s 84(1)(c) enable?

Answer 54

An application where discharge of a covenant will not injure the dominant owners.

Question 55

What balancing act does the tribunal have to perform regarding LPA 1925, s 84(1)(c)?

Answer 55

It must consider social and economic concerns and the wider public interest.