Land Law Freehold Covenants

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Enforceable between

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-original parties to the covenant
-generally only parties to a deed/contract

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2 exceptions to the general enforcement rule

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-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

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Enforcement between successors in title at common law

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s136 LPA-benefit of a covenant can be expressly assigned, must be in writing and notice given to the covenantor

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Implied assignment must satisfy the 4 P&A Swift investments

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-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

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Austerberry

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at common law the burden of a covenant will never pass to a successor of the servient land

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Freehold covenants passing in equity-the burden must pass in line with the 4 Tulk v Moxhay requirements

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-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

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LCC v Allen

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dominant land must be identifiable at creation and enforcement

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Rogers

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D & S land must be in some proximity

covenant must be for the benefit of the dominant land

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s32 LRA 2002

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with registered land the RC should be registered as a notice on the servient land

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s29(2) LRA 2002

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if a notice is entered the purchaser has notice

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s29(1) LRA 2002

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if the notice is not registered, a purchaser for valuable consideration is deemed not to have notice and it cannot be an overriding interest

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Unregistered land

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-pre 1926-doctrine of notice
-post 1925-class d2 land charge

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Renals v Cowlishaw

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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

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Annexation

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occurs at the time of creation, becomes part of the land

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Re Ballards

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to be attached to whole of dominant land, must show it touches and concerns whole land

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Russell

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where D land is broken up, any annexation would be ineffective

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Wroitham

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today annexation may be effective irrespective of the size of the dominant land

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Driver

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today if annexation is expressly to each and every part of the sale, if land is divided, benefit will still pass

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Federated Homes

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statutory annexation-s78 acts to automatically annexe the benefit of a covenant to a dominant land without the need for express words

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Small

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statutory annexation attaches benefit to each and every part subject to contrary intention

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Crest Nicholson

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-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

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Marten v Flight Refueling

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annexation can be implied

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Miles

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Express assignment of benefit must happen at the same time as the transfer of the dominant land

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Re Union

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if Miles criteria is not met, it will be deemed ineffective

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Roake v Chadha

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assignment of a benefit will not pass automatically under s62 LPA

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Re Dolphin

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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

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Remedies for restrictive covenants

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injunction and damages

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court discharge criteria

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s84(1) LPA 1925

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Positive covenants

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general rule is only enforceable between original parties

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indemnity covenants

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-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

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Halsall v Brizell

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a person who wishes to claim his benefit must submit to any corresponding burden

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Allotey

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the burden must be relevant to the enjoyment of the benefit
successor must have option to take the benefit

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Extinguishment of RC's

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D&S land cease to be in diverse occupation/ownership

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Northbourne v Johnstone

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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

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Newton Abbot Co-op Society Ltd

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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.

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Baxter v Four Oaks

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The land was not divided into plots before selling commenced, but this did not prevent a building scheme from having been created.

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Wrotham Park Estate v Parkside Homes

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The judge decided to award the plaintiff damages instead based on the "price" it could reasonably have demanded for releasing the covenant

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Re Banks' Application

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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).

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Dano v Cadogan

Back 39

the meaning of covenants can change over time