The question is about passing the benefit and the burden of freehold covenants
and the extent to which Debbie, as successor in title to Cosy Cottage that
belonged initially to the covenantee (Adam), may be able to enforce some or all of
the covenants against Josh, who is the successor in title to the covenantor’s land
These covenants were made by Adam and ken. Does the covenant between
covenantee(A) and covenantor (K) amounts to a positive or restrictive covenant?
The first covenant is a restrictive covenant as it restricts K’s use of land and the
second would be a positive covenant as it is one that requires K to actively
maintain the hedge between the field and Cosy Cottage Farm
Furthermore, A also covenanted that A would pay half the annual cost of cleaning
and maintaining the open drain situated on the boundary between the field and
Cosy Cottage. This amounts to a positive covenant
How, if at all, the benefit and the burden of the covenants have passed with the
sale of the land to which they relate? To consider both the burden and the benefit
Yet, D will not be able to bring a successful action unless D can establish both that
D is entitled to the benefit and that Josh is subject to the burden of the various
freehold covenants
Covenants are Promises made in a deed. It is Enforceable as contract between
Covenantor (promisor) and Covenantee (promisee) irrespective of whether
contractual consideration is given.
(i) to construct no more than one building on the field
At Law, the Burden of freehold covenants cannot run. No claim at law against
successor to original Covenantor (Josh), thus claim against original Covenantor
(Ken) only. In Equity, Burden of positive covenants do not run and Cannot be
enforced against successor to original covenantor as per Rhone v Stephens.
, Only original covenantor (K) is liable and Only burden of Restrictive covenants will
run as per Tulk v Moxhay.
If D is suing at Equity, she must establish that burden has passed to J in equity. To
enforce, the covenant must show J has burden and D has benefit. Only the burden
of restrictive covenants can run in equity. If burden runs in Equity Benefit must
also run in equity
Burden of covenants will run in Equity under Tulk v Moxhay principle.
1. Covenant must be negative Use the land exclusively as a garden Restrictive
covenant - Tulk v Moxhay. On the facts, to construct no more than one building
on the field amounts to a restrictive covenant
2. Covenant must touch and concern the land At the date of the covenant,
Covenantee must own land which was to benefit from the covenant
Lord Oliver laid down a general test to determine this in the case of swift
Investments v Combined English Stores.
He said firstly, can the covenant burden any owner of the land as opposed to the
original covenantor only? This is to determine whether the substance of the
covenant is capable of binding J. There is still a field and the field is still serving its
original purpose. The area had not changed in any way to make the garden
drastically different from when the original parties were occupying it.
Secondly he asked whether the covenant affects the mode of user, value, nature
or quality of the land. These are to be read disjunctively and looking at the facts,
the covenant will certainly affect the way in which the land is used.
Lastly, Lord Oliver asks if the covenant is expressed to be personal. If it is then the
covenant will not be binding on J. On the facts, there is nothing to indicate this is
the case for this covenant.
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