Land - Freehold Covenants

Front 1

Covenant or easement?

Back 1

•‘together with the benefit of...’ = easement
•‘A covenants with B...’ = covenant

Front 2

Creation of covenant

Back 2

Signed writing s.53 (1) (a)

Equitable only, not capable of being legal.

Front 3

Original parties - Covenantee (seller with benefit)

Back 3

Privity of contract - benefits of the express covenants, including against successors in title. Cannot sue successors in title if parted with all the land for the benefit of which the covenant was taken.

Front 4

Original parties - Covenantor (buyer with burden)

Back 4

S.79 LPA 1925 - burden of covenants passes, covenant must relate to the land

Front 5

Successors - benefit at CL

Back 5

1) Express Assignment – s.136 LPA 1925 must occur when land transferred, be in writing and signed by the assignor (original covenantee). Written notice given to covenantor.

2) Automatically – s.78 LPA 1925:
a) Must ‘touch and concern’ the land of the covenantee, must affect the mode of occupation of the land, or must by itself affect the value of the land (Smith and Snipes v River Douglas).
b) Original covenantee and successor must have legal estate in land.
c) The original parties must intend that the benefit of the covenant is to run with the land. Intention can be shown by an express annexation in the deed, or deemed annexation under s.78 LPA 1925 (post 1925 covenants).

Front 6

Smith and Snipes v River Douglas (1949)

Back 6

The covenant must ‘touch and concern’ the land of the covenantee. The covenant must either affect the mode of occupation of the land, or must by itself affect the value of the land.

Hint 6

River Douglas Catchment Board agreed with a number of landowners to carry out work if some contribution to cost given. Mrs S, one of the covenantees, sold her land to Smith. Brook burst its banks and flooded Smith and Snipes Hall. Claim made against Board for damages. Was not having been privy to the original agreement was a bar?

Front 7

Successors - burden at CL

Back 7

Burden does not run (Austerberry v Oldham) unless:
• Chain of indemnity in place which may pass on financial liability.
• Principle of mutual benefit and burden (Halsall v Brizell).

Front 8

Austerberry v Oldham (1885)

Back 8

Will the purchaser of the burdened land be bound by the original owner’s covenant? Essentially, no, the burden does not run, unless: chain of indemnity or mutual benefit and burden.

Hint 8

Owners of a road had covenanted to keep it in repair. Oldham bought the road. Were they, as successors in title, subject to the burden of the covenant? Held,no. Burden of a covenant (+/-) does not run with the land at common law.

Front 9

Halsall v Brizell (1957)

Back 9

Successor in title who takes the benefit of rights contained in a deed must accept the burden of covenants contained in the same deed. Principle does not apply to restrictive covenants and there must be associated rights.

Hint 9

A deed contained rights granted to the purchaser to use roads/sewers on a housing estate and obligation of the purchaser to maintain them. Ownership of land had changed, dispute over payment of the maintenance fee.

Front 10

Rhone v Stephens (1994)

Back 10

The principle of mutual benefit and burden will only apply where there is a related benefit and burden.

Hint 10

House and adjoining cottage, when cottage sold separately from the house, reciprocal rights of support granted. Both buildings subsequently sold, cottage roof leaked and owners attempted to enforce covenant to maintain. Held, particular covenant to maintain roof was independent.

Front 11

Successors - Benefit in Eq.

Back 11

Benefit of a will pass where:
a) The covenant ‘touches and concerns’ the land of the covenantee, and,
b) The benefit passed to successor of the covenantee by express assignment or annexation (S.78 LPA 1925/ Federated Homes)

Front 12

Federated Homes v Mill Lodge Properties (1980)
(s.78)

Back 12

The benefit of a covenant is annexed to every part of the land, unless a contrary intention is expressed

Hint 12

Covenant made to restrict the overall density of housing on land in Newport Pagnell. Covenant not worded expressly to annex the benefit of the covenant to the covenantee’s land. Was the successor in title to the covenantee able to enforce the covenant?

Front 13

Burden in Eq.

Back 13

Tulk v Moxhay rule - covenant enforceable against a successor to the original covenantor where that successor had notice of the covenant and...

Front 14

Tulk v Moxhay (1848)

Back 14

Equity was prepared to enforce a covenant against a successor in title to the original covenantor where that successor had notice of the covenant. Must be:
1) positive
2) touch and concern land
3) parties must have intended it to run with land (or s.79),
4) notice.

Hint 14

Tulk owned the land in Leicester Square, sold it to Mr Elms who covented with Tulk to keep it as a ‘square’. Subsequently Mr Moxhay acquired the land, his conveyance made no reference to the covenant although he did know about it. Moxhay wanted to build in the square. Held, not allowed obvs.

Front 15

Enforceability

Back 15

Registered = IARE, must put notice on Charges register

Unregistered = Class D (ii) Land Charge. Pre-1926 covenants bind everyone except ‘equity’s darling’.

Front 16

Remedies for breach

Back 16

Original covenantor:
1) damages
2) injunction
3) order for specific performance

Successor:
1) Injunction
2) damages in lieu

Hint 16

If no interest in land anymore, only damages available

Front 17

Discharge

Back 17

• Express Release - enter into a deed with the owner of the burdened land.
• Common Ownership - burdened/benefitted land comes into same ownership.
• Section 84 LPA 1925 - An application can be made to the Lands Chamber.