These are notes on freehold covenants created in 2019. They follow a structured format which condenses the relevant case law, statutory provisions and academic opinion that are relevant to the topic to aid with exam revision.
Freehold covenants:
Equity: Does the burden of a restrictive covenant run with the
Key concepts: land?
Passing the burden of the covenant: Rhone v Stephens:
Restrictive covenants can run with the land
Equity Common Law Positive covenants will not run with the land
The four requirements In general, the burden does Tulk v Moxhay:
necessary for the burden to not pass at common law In order for the burden of restrictive covenants to run
pass in equity were set out in (Austerberry v Oldham with the land, four conditions must bet before the
Tulk v Moxhay Corporation) obligation to observe the burden of a restrictive
Covenant is negative in covenant will pass to a successor in title to the servient
substance land:
Covenant accommodates the 1. The covenant must be negative in substance
benefitted tenement Haywood v Brunswick- The test is that by
Original parties intended the
observing the covenant, not expenditure should be
burden to pass
put on the servient owner
Notice
2. The covenant must, at the date of the covenant, be made to
benefit the dominant land retained by the covenantee
Passing the benefit of the covenant London County Council v Allen- For the burden of a
restrictive covenant to run with the servient land
Equity Common Law there must be a dominant tenement at the date of
Covenant touches and The benefit may be the covenant
concerns the benefitted expressly or impliedly The covenantee must touch and concern the
tenement (P&A Swift) assigned dominant land
Covenantee’s successor in title Bryant Homes Southern Ltd v Stein- Touch and
became entitled to the benefit concern provides a pointer to the sort of obligation
of the covenant either by the parties had in mind as opposed to a strict rule
annexation, assignment or a that the subject of the covenant must touch and
scheme of development
concern the land
(Renals v Cowlishaw)
Newton Abbot Co-operative Society Ltd v
Williamson and Treadgold- Although the
Definition: dominated land is not expressly identified, the
courts can be prepared to identify it by examining
A covenant is a promise made by one party (the covenantor) for the geography of the locality
the benefit of another party (the covenantee) which is usually Kelly v Barret- Suggested that land at Clapham
contained in a deed. would be too remote and unable to carry a right to
enforce covenants in respect of land at Hampstead
The most common reason for granting a freehold covenant is
(Five miles difference)
when one freeholder is selling a part of his land and wants to
3. The covenant must be made with an intent to burden the
restrict the new owner’s use of that (servient) land
servient land
Benefitted land- The land which benefits from the covenant. It is Distinction between
owned by the covenantee- the landowner who is given the A covenant intended to bind only the covenantor
covenant A covenant intended to throw a continuing burden
on the land itself and thereby bind all subsequent
Burdened Land- The land which bears the burden of carrying out owners of the land
the covenant, and is owned by the covenantor- the landowner Only the second type of covenant is a valid
who gave the covenant covenant
Restrictive covenants created after 1925 are now
Restrictive and positive covenants distinguished:
covered by a word saving provision under s.79 (1)
A positive covenant involves positive actions LPA 1925:
A negative covenant involves refraining from doing Provides that covenants which relate to the
something covenantor’s land are deemed to be made on
The distinction is necessary as it helps to determine whether behalf of their successors in title unless the
the benefit and burden of a covenant run with the land (i.e. contrary appears from the terms of the covenant
whether the covenant has passed to the successor in title)
Where the burden of a covenant passes, the corresponding Enforcement of the benefit of a covenant at law by
benefit must pass as well successors to the original covenantee:
Smith and Snipes Hall Farm Ltd v River Douglas
Common law- Does the burden of a covenant run with the land? Catchment Board- In order to run with the land the
covenant must satisfy 3 conditions:
Austerberry v Oldham- The burden of a covenant,
It must be determined from the deed that the covenant
whether it is positive or negative does not run with the
land does ‘touch and concern’ the land: it must affect either
Rhone v Stephens- the benefit of a covenant may run the mode of occupation of the land, the use of the land
with the land at law but not the burden or the value of the land
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