Week 6 - Third Party Rights- Freehold Covenants Flashcards
What is a Covenant?
A covenant is a clause in a deed containing a legally binding promise that affects the land in the deed.
Briefly explain what the burden and the benefit of a covenant are.
The burden is the obligation, and the benefit the ‘gain’.
A covenant not to allow the fence between properties to fall into disrepair is a negative covenant. True or false? Give a brief reason.
False. The clause requires something to be done – the
fence must be maintained – and therefore this is a
restrictive positive covenant.
Explain what ‘running with the land’ means.
That future owners are bound by the covenant.
Which case states that the burden of restrictive covenants can run with the land?
Tulk v. Moxhay (1848)
Which case determines that the burden of a freehold covenant does not run at law.
Austerberry v. Oldham
State the two ways that a benefit may run at law. Include the statute/relevant tests.
Express assignment. The statute governing express assignment is the Law of Property Act 1925 s.136.
Annexation.
The four tests of annexation are:
1. The covenant benefits the land AND
2. The covenantee held a legal interest at covenant
promise AND
3. The claimant now has legal interest AND
4. The benefit was intended to pass
A benefit cannot run at equity. True or false?
It depends. IF the benefit benefits the land AND the
original parties intended it to run, then yes it can.
State the scheme of development tests.
There must be one seller, selling multiple predetermined plots in a ‘clearly defined’ area. The covenants must be the same across all plots, and all plots must benefit. Prospective purchasers must be told of the covenants.
