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24 Cards in this Set
- Front
- Back
Covenantor
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The person who makes the promise in a deed and assumes the burden.
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Covanantee
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The person to whom the promise is made and who enjoys the benefit.
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Annexation
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The process by which the benefit/burden is attached to the land so it automatically passes to successors.
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Assignment
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Express transfer of a covenant's benefit to a successor.
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Austerberry v Oldham
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The burden of a freehold covenant does not pass at common law.
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Rhone v Stephens
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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. |
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Thamesmead Town v Abbey
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Emphasised the point in Rhone v Stephens that benefit and burden must be closely linked. Narrow application of the rule approved.
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Tulk v Moxhay
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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. |
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Haywood v Brunswick
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If expenditure is required, the covenant is positive. Action and expenditure = Positive Covenant.
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Powell v Hemsley
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- 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. |
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LCC v Allen
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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.
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P&A Swift Investments
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- 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. |
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Smith and Snipes Hall Farm v RDCB
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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. |
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Bailey v Stevens
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Dominant and Servient land must be proximate.
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Morrells of Oxford v Oxford United
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- 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. |
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Renals v Cowlishaw
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- Aside from 'touching and concerning', there must be annexation, assignment or a scheme of development
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Federated Homes v Mill Lodge
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Terms of statute sufficient to annex the benefit of the covenant to the covenantee's land and express terms are not necessary.
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Rogers v Hosegood
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Held: If benefit of covenant is expressly annexed to the land at time of covenant, it is thereafter permanently attached.
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Newton Abbott v Williamson
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Held: Implied annexation of the benefit will be implied by surrounding circumstances but only in rare cases.
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Crest Nicholson v McAllister
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- 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. |
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Re Ballard's Conveyance
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Problems with annexation:
- Area of land too large to be capable of being benefited? - Successor to part cannot claim benefit over the whole? |
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Miles v Easter
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Assignment - land must be properly identified and assignment made at time of conveyance.
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Tophams Ltd v Earl of Sefton
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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.
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Halsall v Brizell
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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. |