Summary
Summary - Covenants relating to land
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Brief and summarising notes on the law around covenants with regard to property in England and Wales - case notes and summaries
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CovenantsFriday, 26 November 2021 11:07
Covenant = a promise contained in a deed
Covenantor = the person making the promise, the person bound by the covenant
Covenantee = the person receiving the promise, the person with the benefit of the covenant
Examples of covenants:
- To prevent or restrict building
- To restrict the use of land
- To erect and /or maintain fences and walls
- To contribute towards the cost of maintaining shared facilities
- To prevent nuisance or obstruction of facilities
Positive covenants:
- The person bound by the positive covenant has to do something e.g. maintain a fence
- The burden of a positive covenant cannot bind successors in title
Restrictive covenants:
- The person bound by the restrictive covenant is forbidden from doing something e.g. cannot
use a house for commercial purposes
Original parties to a covenant - LPA 1925 s56(1):
- Extends the definition of 'original covenantee'
- Person can take the benefit even if not formally named, if covenant purports to be made with
him
○ E.g. covenant with seller 'and owners of the time being' of adjacent land
○ These owners are not names but the covenant seems to be made with them
- S56(1) does not apply to future owners of the land - only those in existence and identifiable at
the date of the covenant
Original parties to a covenant - Contracts (Rights of Third Parties) Act 1999
- Expands the group of people able to enforce the benefit of a contract
○ Does not affect the burden rules
- Someone who is not a party can enforce the benefit if:
○ There is an express term to that effect or
○ The contract purports to confer benefits on him, and there is no contrary indication
LPA 1925 s56 vs C(RTP)A 1999
- To use LPA 1925 s 56 the covenant must purport to be made with the person claiming the
benefit
- Only applies to owners in existence at the time the covenant is created, not future owners
- C(RTP)A 1999 can be used if the covenant purports to confer a benefit on the person claiming
the benefit
- C(RTP)A 1999 only applies to covenants post-May 2000
Passing the benefit under common law
- The benefit of a covenant will pass to successors in the title of the covenantee at common law
if all the following conditions are met:
○ The covenant 'touches and concerns' the land of the covenantee
▪ P & A Swift Investments v Combined English Store Groups (1989)
▪ The covenant is only of benefit to the person who owns the estate in the land; if it
is separated from the land it is of no more use to the covenantee
▪ The covenant affects the nature or quality of the land, how it can be used, or the
value of the land of the estate owner
▪ The covenant is not expressed to be personal; it is not a promise made to a
specific person
Land Law Page 1
, specific person
○ At the time when the covenant was made, it was intended that the benefit should run
with the land
▪ Intention is demonstrated by wording in the covenant or wording implied by s78
LPA 1925
○ At the time the covenant was made, the covenantee held a legal estate in the land to be
benefitted
▪ Has to be legal, not equitable
○ The successor in title derives his or her title from, or under, the original covenantee
▪ Used to be that the title of the successor must be the same as the covenantee (i.e.
freehold to freehold) but under s78 it may now be a leasehold
Passing the burden at common law
- The burden of a covenant does not pass to a successor in title at common law - Austerberry v
Corporation of Oldham (1885)
Passing the benefit under equity
- Renals v Cowlishaw (1878) says that the benefit will pass in equity if:
a. The covenant 'touches and concerns' the land of the covenantee (same meaning as in
common law)
b. The benefit of the covenant was:
i. Annexed to the land of the covenantee
1) Express annexation - the deed creating the covenant clearly identifies the
land benefitted and states that the covenant is for the benefit of the land
2) Implied annexation - annexation may be implied if it can be established that
by reason of the circumstances surrounding it, the covenant must have been
intended to benefit a defined piece of land (Marten v Flight Refuelling Ltd
(1962))
3) Statutory annexation - s78 LPA 1925 automatically annexes the benefit of a
post 1925 covenant
a) Federated Homes v Mill Lodge Properties (1980) interprets s78 very
widely
b) Accepted in Rooke v Chadha (1984)
c) As long as the land is identifiable
d) The covenant must not be purely personal
ii. Expressly assigned to the successor in title, or
1) The person with the benefit expressly assigns the benefit to whoever
purchases the land
2) There must be a new assignment each time the land is sold - the chain of
assignment can easily fail
iii. The land in question is part of a building scheme
1) A defined area of land sold by a single vendor in plots that are subject to
restrictive covenants that are intended to benefit the whole area
2) Where there is a building scheme, each of the plot owners can enforce
restrictive covenants against all / any of the other plot owners
3) Building schemes result in mutual enforceability of covenants within the
scheme
4) Elliston v Reacher (1908) laid out rules for a building scheme:
Claimant and defendant must have derived the title from a common
vendor
Common vendor laid out the estate in plots
Extent of the scheme is clearly defined
Common vendor intended the restrictions to be for the benefit of all
plots sold
Plots were purchased on the basis that the restrictions were mutually
enforceable
5) Re Dolphin's Conveyance (1970)
Relaxation of the requirements for a building scheme
Land Law Page 2
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