Freehold Covenants

Pregunta	Respuesta
What is a covenant?	A covenant is a promise (usually contained in a deed) by one person to another to do or refrain from doing a particular act in relation to their land.
Who is the person who made the promise?	Covenantor
who is the person to whom the promise is made	Covenantee
What is a restrictive (negative) covenant?	a covenant will be restrictive (negative) if it prevents the covenantor from doing something on his land e.g. a covenant not to park a caravan on the driveway.
What is a positive covenant?	a covenant that requires the covenantor to take action or spend money to comply with it will usually be a positive covenant e.g. a covenant to keep the drains serving a property in good repair.
How does enforcement of covenants work?	Covenants are enforceable as a matter of contract between the covenantor and the covenantee. the original covenantor covenants on behalf of himself and his successors in title and therefore, even after he has parted with the land, he remains liable on the covenant to whomever currently has the benefit of it
Contracts (Rights of Third Parties) Act 1999 Applies to contracts (and covenants) entered into on or after 11 May 2000. How does this apply to covenants?	A third party may sue to enforce a contractual term if either the contract expressly provides that he may or the contract “purports to confer a benefit upon him”.
how are covenants enforced between the origional covenanting parties?	using normal contractual principles
Generally only the parties to a deed/contract can enforce the terms subjuct to which two exceptions?	S. 56 LPA 1925 - if he is an existing and identifiable individual at the date of the covenant Contract rights third parties act 1999
How are the Contract (rights of third parties) act 1999 requirements for enforcing?	a party may enforce the terms of a contract to which he was not a party if: - 1. the contract expressly provides that he can; or 2. a term of the contract purports to confer a benefit upon him
what do the Contract (rights of third parties) act 1999 requirements for enforcing actually mean in practical terms?	So the covenant must have named this person or identified them as a member of a class such as 'successors in title'
After both the dom and serv lands have passed to successors are is the covenant still enforceable between the origional parties?	yes. Although the original covenantee is unlikely to try as because he no longer owns the land he doesn't suffer any loss. His successor will be the one who suffers so they may wish to try to enforce
What does a successor in title to the dominant land need to do to be able to enforce a covenant?	prove that the benefit of the covenant being breached passed to him when he took over the dominant land
Why might the origional covenantor not be the best person to pursue for the breach?	1. he might be difficult to find and if found any remedy against him would be limited to damages. 2. there would be little incentive for the successor to stop the breach (unless there was indemnity cover)
Who is the best person to pursue for a breach of a covenant?	The successor in title who is the current owner of the servient land and the person committing the breach. However this is only possible it can be established that the burden of the covenant passed to him when he took the land.
Passing of benefit can happen it two ways which are?	1. At common law 2. In equity
What 2 ways can the benefit pass at common law?	1. Expressly - s. .136 LPA 1925 2. Impliedly
what are the requirements for express assignment under s.136 LPA?	in writing and express notice of the assignment is given to the covenantor
Case which governs implied assignment?	P&A Swift Investments
What are the requirements from P&A Swift Investments?	1. The covenant must touch and concern the dominant land 2. Origional parties must have intended the benefit to pass (either expressly in the conveyance or implied by s.78 LPA) 3. the covenantee had the legal estate 4. the successor to the covenantee must hold legal title in the dominant land
Case which says that the legal title held by the covenantee does not need to be the same land is held by the successor covenantee?	Snipes Hall Farm
How does the burden of a covenant pass to successor at common law?	It does, unless Halsall v Brizell applies
What is the rule from Halsall v Brizell?	The burden of a covenant can pass at common law if the benefit and burden are linked. E.G. Covenantee could not claim the benefit of an easement over estate roads without complying with the related covenant to pay towards the cost of their upkeep
Can the burden of a covenant pass in equity?	Positive - no. Negative, Yes, where all 4 conditions from Tulk v Moxhay are met
What are the 4 conditions from tulk v Moxhay?	1. the covenant must be negative 2. it touches and concerns the land (i.e. the cov accomodates the dominant land) 3. it was intended to run (could be implied by s.79 LPA) 4. notice of the covenant was given (by registration)
case which states that a positive covenant cannot pass?	Haywood v Brunswick
How does a covenant touch and concern land?	1. there must be identifiable land that enjoys the benefit of the covenant 2. the covenant must concern the dominant land and not be personal to the origional covenantee 3. There must be sufficient proximity between dom and serv land.
Tulk v Moxhay - Intended to run How does this work?	There could be express wording - the covenantor covenants on behalf of hiself and his successors in title' or Implied by virtue of s.79 LPA subject to contrary intention
Tulk v Moxhay - purchaser of servient land must have had notice	This is essentially a question of registration and depends upon whether the covenant is registered or unregistered land.
How is a covenant on registered land protected?	Entered as a notice on the charges register - s.32 LRA 2002 Where notice entered purchaser has notice - s.29(2) LRA Where not entered purchaser does not have notice - s. 29(1) LRA
How is a covenant on unregistered land protected?	post 1925 - registered as class Dii land charges - s.2(5) Land Charges Act. If registered a purchaser has notice. If not registered a purchaser does not have notice
How can the benefit of a covenant pass in equity?	If the burden of a covenant has passed in equity a successor in title to the dominant land must prove that the benefit passed to him in equity too if he is to be able to enforce it.
The benefit of a covennt will pass in equity provided...	the covenant touches and concerns the land and the covenant passed by: - annexation; express assignment; or a scheme of development
What is annexation?	the principle that once the covenant is created it attaches to the land and becomes part of it so it passes with the land and passes with it irrelevant of whether it is registered of if there is notice of it.
What types of annexation are there?	Express statutory implied
What is express annexation?	Where the wording of the covenant shows that the benefit is being attached to the actual dominant land.
how can express annexation occur	e.g. making sure the covenent is made expressly 'for the benefit of the land'
How does statutory annexation apply?	There is no mention in the covenant that it benefits particular land and so any attempt to annex the benefit of the covenant must be implied
What is statutory annexation?	s78 LPA 1925 “a covenant relating to any land of the covenantee shall be deemed to be made with the covenantee and his successors in title and the persons deriving title under him or them, and shall have effect as if such successors and other persons were expressed
Case on statutory annexation?	Federated homes ltd
Other way to assign the benefit of a covenant in equity?	Express assignment
What is a building scheme or scheme of development	A common seller of land, e.g. builder, can transfer the benefit of any covenants he receives from the buyer of one of the plots to every other buyer of a plot. Every buyer gets the benefit of the covenants given by every other buyer. The covenants will be enforceable between the original buyers of the various plots (and their successors in title).
Advantage of a building scheme?	it allows land already sold to receive the benefit of covenants made later by the buyers of other plots on the same development
Case which established the requirements for a scheme of development?	Re Dolphons Conveyance?
Requirements from Re Dolphons Conveyance?	1. There must be an identifiable scheme with a defined perimeter 2. There must be a mutually perceived common intention that a scheme was intended for the reciprocol enforcement of obligations
What are the remedies for breach of a covenant?	Injunctions and orders of specific performance Damages
What extinguishes a covenant?	When the dom and serv land ceases to be in separate ownership or when the parties discharge by deed Restrictive covenants can be removed by a court

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