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8 Cards in this Set
- Front
- Back
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4. Elements NRBI |
1. Notice (Must be registered for notice to count in torrents) 2. Must be restrictive (negative obligation) 3. the benefit runs with the land of the CEE 4. The parties intend that covenant runs w/ the land. |
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Creation of Covenant |
s 88B CA: allows freehold covenant to be attached to the register s 88(3): RG can register restrictions - 3 requirements: 1. restriction is properly recorded on register 2. the instrument specifies: - the ST - the DT - the person who has right to modify the restriction - person whose consent is required to modify restriction 3. the 4 elements NRBI |
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Restrictive Covenants are Equitable Interests and Have Equitable Remedies |
The court will either grant: 1. an injunction to restrain a breach of thecovenant; or 2.equitable damages in lieu. because equitable remedies are discretionary,if the damage sustained is negligible, a court may decline to grant a remedy. |
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Section 89 CA: Modification/Extinguishment of Freehold Covenant |
Requires court to be satisfiedthat that the modification will not substantiallyinjure the persons entitled to the benefit of the covenant. |
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Substantial injury What counts as substantial injury? |
Levi v Spicer: 1. Economic: - reduction in value of benefited land 2. Physical: - increased noise/traffic 3. Intangible: - impairment of views - intrusion on privacy - unsightliness - alteration to ambience of neighbourhood |
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What evidence can you use to prove substantial injury? |
Subjective Element: person injured must be sincere and reasonable in their complaint Mogensen & Anor vPortuland Developments Pty Ltd: 1/ subjective considerations may be relevant eg. writtenstatement of objection, some oral statements said by objectors as evidence as it is evidence of their state of mind.· BUT this evidence does not havesubstantial weight. Levi v Spicer: 1. Evidence of objectors willcarry less weight if the objector has breached the covenant in the same way asthey are objecting to. |
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Exercise of Discretion in granting modification - what will courts consider? |
Ridley v Taylor: 1. character of the applicant is not relevant. 2. Only consideration that shouldaffect the decision is the property and its history as such. 3 Conduct of owners of DTs & STs are relevant. |
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How to vary or remove covenant? 4 |
1. Ct Order 2. Planning Authorities 3. Express agreement 4. 88B CA can specify duration of covenant |
