Freehold Covenants

Front 1

Covenantor

Back 1

The person who makes the promise in a deed and assumes the burden.

Front 2

Covanantee

Back 2

The person to whom the promise is made and who enjoys the benefit.

Front 3

Annexation

Back 3

The process by which the benefit/burden is attached to the land so it automatically passes to successors.

Front 4

Assignment

Back 4

Express transfer of a covenant's benefit to a successor.

Front 5

Austerberry v Oldham

Back 5

The burden of a freehold covenant does not pass at common law.

Front 6

Rhone v Stephens

Back 6

Confirms the point in Austerberry that the burden does not pass at common law.

- Also there must be a correlation between the burden and benefit and party must have the choice over whether to take the benefit.

Front 7

Thamesmead Town v Abbey

Back 7

Emphasised the point in Rhone v Stephens that benefit and burden must be closely linked. Narrow application of the rule approved.

Front 8

Tulk v Moxhay

Back 8

Facts: Had notice of restrictions then built in Leicester Square anyway.

Held: Sets out the four requirements for the burden to pass at equity to a successor in title:

1. It must be negative.

2. The covenant must accommodate a dominant tenement.

3. Original parties must of intended the burden to run.

4. Notice.

Front 9

Haywood v Brunswick

Back 9

If expenditure is required, the covenant is positive. Action and expenditure = Positive Covenant.

Front 10

Powell v Hemsley

Back 10

- A covenant should be interpreted as a whole.

- A positive aspect in a covenant simply a condition of an overall negative covenant.

- Also a negative undertaking within a covenant could be found to be a condition of a positive covenant overall.

Front 11

LCC v Allen

Back 11

Held: Original Covenantee and successor must have retained an interest in land at the date the covenant was made and at time of enforcement. The covenant must attach to dominant land.

Front 12

P&A Swift Investments

Back 12

- Covenant must 'touch and concern' the land.
- Must affect the quality, nature, value or mode of use of the land.

Implied Assignment of benefit at common law:
- Covenant must 'touch and concern' the land.
- Original parties must intend that benefit should run with land (implied by s.79 LPA 1925)
- Covenantee must hold legal estate at time covenant was made.
- Successor in title must hold legal estate in land.

Front 13

Smith and Snipes Hall Farm v RDCB

Back 13

Facts: Covenant to widen and repair river banks.

Held: Confirms the test in P&A Swift. Wide interpretation of s.78. s.78 can also be used as evidence of intention of original parties for benefit to run.

Front 14

Bailey v Stevens

Back 14

Dominant and Servient land must be proximate.

Front 15

Morrells of Oxford v Oxford United

Back 15

- Covenants made by covenantor are deemed to be made on behalf of successors as well, unless a contradictory intention appears.
- Affirmed by s.79 LPA 1925.

Front 16

Renals v Cowlishaw

Back 16

- Aside from 'touching and concerning', there must be annexation, assignment or a scheme of development

Front 17

Federated Homes v Mill Lodge

Back 17

Terms of statute sufficient to annex the benefit of the covenant to the covenantee's land and express terms are not necessary.

Front 18

Rogers v Hosegood

Back 18

Held: If benefit of covenant is expressly annexed to the land at time of covenant, it is thereafter permanently attached.

Front 19

Newton Abbott v Williamson

Back 19

Held: Implied annexation of the benefit will be implied by surrounding circumstances but only in rare cases.

Front 20

Crest Nicholson v McAllister

Back 20

- Statutory annexation case. Limited the scope of s.78.

- Although s.78 has this automatic annexation effect, the deed must make clear reference to the land which is benefited.

Front 21

Re Ballard's Conveyance

Back 21

Problems with annexation:
- Area of land too large to be capable of being benefited?
- Successor to part cannot claim benefit over the whole?

Front 22

Miles v Easter

Back 22

Assignment - land must be properly identified and assignment made at time of conveyance.

Front 23

Tophams Ltd v Earl of Sefton

Back 23

Effect of continuing liability is not to make successors liable. Rather effect is to make original covenantor shoulder liability even after he has parted with the land.

Front 24

Halsall v Brizell

Back 24

Facts: Reciprocal benefits and burdens enjoyed by the users of the roads and sewers.

Held: A covenantor cannot take benefit without the burden. Applies where dominant owner has granted a benefit in form of a service/facility.