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39 Cards in this Set

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Enforceable between
-original parties to the covenant
-generally only parties to a deed/contract
2 exceptions to the general enforcement rule
-s56 LPA-Re Ecclesiatical-if covenant was purported to be made with him, he may be able to sue upon it
Kelsey v Dodd-3rd party must be identifiable at the time of creation-not successors in title
-CROTPA
Enforcement between successors in title at common law
s136 LPA-benefit of a covenant can be expressly assigned, must be in writing and notice given to the covenantor
Implied assignment must satisfy the 4 P&A Swift investments
-covenant must touch and concern the land-Smith & Snipes
-original parties must have intended the benefit to pass, s78 LPA-implied since 1925
-covenantee held a legal estate in the land
-successor holds a legal title-Austerberry
Austerberry
at common law the burden of a covenant will never pass to a successor of the servient land
Freehold covenants passing in equity-the burden must pass in line with the 4 Tulk v Moxhay requirements
-covenant must be negative in nature-Haywood
-covenant must accommodate the dominant land
-original parties must have intended burden to pass with servient land
-purchaser of S land must have had NOTICE of the covenant
LCC v Allen
dominant land must be identifiable at creation and enforcement
Rogers
D & S land must be in some proximity

covenant must be for the benefit of the dominant land
s32 LRA 2002
with registered land the RC should be registered as a notice on the servient land
s29(2) LRA 2002
if a notice is entered the purchaser has notice
s29(1) LRA 2002
if the notice is not registered, a purchaser for valuable consideration is deemed not to have notice and it cannot be an overriding interest
Unregistered land
-pre 1926-doctrine of notice
-post 1925-class d2 land charge
Renals v Cowlishaw
Passing the benefit in equity
-covenant must touch and concern the land
-covenant must have been passed by annexation, express assignment or a building scheme

any reference to covenantee is done in capacity as owner of the dominant land
Annexation
occurs at the time of creation, becomes part of the land
Re Ballards
to be attached to whole of dominant land, must show it touches and concerns whole land
Russell
where D land is broken up, any annexation would be ineffective
Wroitham
today annexation may be effective irrespective of the size of the dominant land
Driver
today if annexation is expressly to each and every part of the sale, if land is divided, benefit will still pass
Federated Homes
statutory annexation-s78 acts to automatically annexe the benefit of a covenant to a dominant land without the need for express words
Small
statutory annexation attaches benefit to each and every part subject to contrary intention
Crest Nicholson
-the ability by way of careful wording to exclude automatic annexation by virtue of s78 was confirmed
-the wording of the covenant must ID the dominant land
Marten v Flight Refueling
annexation can be implied
Miles
Express assignment of benefit must happen at the same time as the transfer of the dominant land
Re Union
if Miles criteria is not met, it will be deemed ineffective
Roake v Chadha
assignment of a benefit will not pass automatically under s62 LPA
Re Dolphin
building scheme-
-there must be an identifiable scheme
-there must be a mutually perceived common intention that a scheme was intended to be for reciprocal enforcement of obligations
Remedies for restrictive covenants
injunction and damages
court discharge criteria
s84(1) LPA 1925
Positive covenants
general rule is only enforceable between original parties
indemnity covenants
-original covenantor will remain liable, can get an indemnity from successors in title
-no obligation for successors to sign indemnities
-can only get damages
-original covenantor may be unable to be found
Halsall v Brizell
a person who wishes to claim his benefit must submit to any corresponding burden
Allotey
the burden must be relevant to the enjoyment of the benefit
successor must have option to take the benefit
Extinguishment of RC's
D&S land cease to be in diverse occupation/ownership
Northbourne v Johnstone
There was a promise in a contract for the sale of dominant land that the seller would assign to the buyer the benefit of a restrictive covenant. However, the conveyance of the land omitted the relevant assignment clause. RC extinguished
Newton Abbot Co-op Society Ltd
If dominant land passes on death (rather than on a sale), it seems that an express assignment is not required for the new owner to enforce the benefit of a restrictive covenant.
Baxter v Four Oaks
The land was not divided into plots before selling commenced, but this did not prevent a building scheme from having been created.
Wrotham Park Estate v Parkside Homes
The judge decided to award the plaintiff damages instead based on the "price" it could reasonably have demanded for releasing the covenant
Re Banks' Application
An application to the Lands Tribunal to modify the covenant succeeded under ground (aa), with the servient owner paying compensation to the dominant owners (to make up for any loss or disadvantage suffered by them).
Dano v Cadogan
the meaning of covenants can change over time