Land - Freehold Covenants

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Creation

Legal covenants

Back 1

Deed

Front 2

Creation

Equitable covenants

Back 2

Signed writing

Front 3

Original covenantee will have benefit of ANY covenants and can enforce against anyone who...

Back 3

has the burden of covenants

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STATUTE

Covenants relating to land shall be deemed to be made by covenantor on behalf of successors (except personal)

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s 79 LPA 1925

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Benefit at COMMON LAW can pass in 2 ways...

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Express assignment
Automatically

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STATUTE

Expressly assign covenants....

assignment must take place at time of land transfer, be in signed writing by original cov'or and person with burden receives written notice

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s 136 LPA

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STATUTE

Automatic assignment

Benefit of covenant will pass to sucessors

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s 78 LPA

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COMMON LAW: For benefit to pass...

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Cov must touch and concern land
Original and current cov'ee must have legal estate
Original parties intended cov to run with land

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CASE

For cov to 'touch and concern land' MUST affect mode of occupation of land or by itself affect value of land (i.e. not personal)

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Smith v Snipes Hall Farm

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Two ways to show intention for cov to pass with land...

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Express annexation in deed
Annexation under statute

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STATUTE:

Annexation under statute (after 1925)

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s 78 LPA

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CASE:

In order to annex under statute, the covenant must have been capable of benefiting covenantee's land at the time

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Federated Homes

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For BENEFIT to pass in equity....

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Touches and concerns
Intention to run with land

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Burden at common law


Basic rule - Parties cannot be made liable unless parties to a contract

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Austerberry v Oldham Corp

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Burden at common law

2 exception to privity of contract rule -

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Indemnity

Mutual benefit and burden

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Burden at common law

Indemnity =

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clause allowing original covenant to recover from breach

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Burden at common law

Mutual benefit/burden..

Successor in title who takes benefit (e.g. easement) must accept the burden of covenants.

Covs MUST be positive and MUST be related to benefit

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Halsall v Brizell

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Burden at common law

Mutual benefit/burden

Benefit and burden MUST be related.
Presence of easement will NOT automatically make covs enforceable

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Rhonev Stephens

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Burden in Equity

Burden WILL NOT pass at equity for...

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positive covs

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Burden in Equity

Restrictive covs will pass if __________________ conditions are met

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Tulk v Moxhay

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Burden in Equity

Tulk v Moxhay conditions

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Restrictive
Touch and concern
Intention for benefit to run
Notice of Covenant

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Burden in Equity

3rd Tulk v Moxhay condition:

Intention can be shown by EXPRESS statement in deed or______________________________________ unless contrary expressed in deed

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implied under s 79 LPA

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Burden in Equity

4th Tulk v Moxhay condition:

Notice of Covenant - Registered land

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IARE on charges register

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Burden in Equity

4th Tulk v Moxhay condition:

Notice of Covenant - Unregistered land (post 1925)

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Class D(ii) Land Charge before date of sale completion

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Burden in Equity

Restrictive Cov created before 1925 will be binding unless purchaser is...

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Equity's Darling

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BREACH OF COV - REMEDIES

Against original covenantor

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damage, injunctions, specific performance

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BREACH OF COV - REMEDIES

Against sucessor

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Injunction/damages in lieu

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4 ways to discharge covenant

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1) express release
2) common ownership
3) s 84 LPA
4) Breach insurance