FREEHOLD COVENANTS 2

Step 3 - Running of the burden in equity
1. Rules from TULK v MOXHAY
  1. 1) Only applies to negative/restrictive covenants
    1. A positive covenant may not pass in equity from RHONE v STEPHENS
      1. 2) Must accommodate the dominant land: Original covenatee was owner of the benefitted land when covenant granted
        The dominant and servient tenements must have enjoyed sufficient proximity
        Proximity test from FORMBY v BARKER - covenants binding land in Hampstead too remote to benefit land in Clapham!!
        Original parties must of intended burden to run with land, either expressly in deed or impliedly. s79 LPA following case of FEDERATED HOMES v MILL LODGE PROPERTIES
        3) Burden of the covenant must have been intended by both parties to run with servient land. Expressly or impliedly!
REGISTRATION OF RESTRICTIVE COVENANTS
1. In many cases even if all conditions are met, will only bind successor if registered
  1. Pre 1926 - Doctrine of Notice
  2. Post 1926 - Unregistered land needs land charge. Registered land by way of notice
  3. If not registered, void for BFP (Cannot be an overriding interest in registered land)
Step 4 - Running of benefit in equity
1. Benefit will pass in equity if it touches and concerns the land
  1. Or the benefit passes by: Annexation; Assignment or under a Building Scheme
    1. Covenant touch & concern the land from SMITH & SNIPES HALL FARM v RIVER DOUGLAS CATCHMENT BOARD
      1. Annexation - Expressly: where words of covenant show that benefit was intended to pass to new owners of DT
        Or impliedly: s78 LPA when covenant relates to the land, benefit will be annexed to DT, unless evidence to the contrary. FEDERATED HOMES v MILL LODGE PROPERTIES
        Assignment - Unless covenant is annexed to land will remain separate from it. For benefit to pass must be an express assignment of covenant
        Assignment must be at same time as transfer of the land, usually within transfer deed - ROAKE v CHADHA
        Required with every sale or purchase of the land
        Building scheme - when a scheme exists, benefit and burden of covenants will pass with land
        Requirements in ELLISTON v REACHER
        Must be a common vendor
        Estate must be laid out in plots before selling
        Restrictions must benefit all the lots
        Parties will have purchased on basis that covenants enforceable by all other purchasers in same scheme
        Area of the scheme is clearly defined
REMEDIES at CL
1. If able to prove benefit and burden, could only claim damages, court does not have discretion
2. In Equity - If able to prove benefit and burden may be able to claim, Injunction (Restrictive); Specific Performance (Positive) or Damages
  1. Damages would only be awarded when: Injury to claimants rights is small; the damage can be estimated in money; damage can be adequately compensated with small payment or injunction would be too oppressive
Discharge of Covenants as they can become outdated
1. Express Discharge - will the benefitted owner agree to the discharge?
2. Unity of Seisin - if you buy both the benefitted and burdened property
3. S84 LPA - Covenants discharged forcibly. ie formerly residential area
4. s28 LPA - Enforced by tribunal
Reform Proposals
1. At present: person who agreed to covenant has contract and can be sued.
  1. Even if they no longer live at the property
2. Introduction of a 'land obligation' binding on successors
  1. Would no longer be enforceable against original covenantor
    1. These land obligations would be positive and negative
    2. Would be registrable
      1. Moving towards the covenant being to the property and not the current owner

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