80& MARK WAS ACHIEVED ON THIS.
Tom was the owner of a large estate with extensive grounds and a manor house called Mallet. Part of that estate, called Velvet Pastures, was used by Boystoy Ltd as a croquet ground and museum. In 2004, Tom gave Velvet Pastures to Boystoy to continue using it as a cro...
Freehold covenants is a promise made in a deed and is enforceable as a contract
between covenantor and covenantee regardless whether there was
consideration. Each covenant has burden and benefit. The covenantor carries the
burden as he is making the promise and covenantee the benefit. It is a
prorprietary interest in land, section 1 of the LPA 1925.
We will have to see whether the covenant is posistive in nature that is it requires
an act by the covenantor or it is negative in nature, that it restricts the owner of
the land from doing something on his land. Whether it is restrictive or positive it
depends on the substance and not how it is worded Holland Park v Hicks.
On the facts, the original covenantor is Tom and covenantee is Boystoy ltd. The
question to be asked is whether the burdens and benefits have run. Whether the
benefit have run from Tom to his son Mallet and whether the burden have run
from Boystoy ltd to Girlsthing Ltd?
To allow the current owner of Mallet to preside at any ceremony organised by
Boystoy.
The question to consider is whether the benefits have passed to Harold when
Tom died? Benefits in Common law, there are four conditions to satisfy in order
for the benefit to run with the land.
The first question, whether the covenant touch and concern Malet? In Swift
investment v Combined English stores, LJ Oliver came up with 3 quesitons to
consider when answering such a question. The first question, can the covenant
bind future owners as opposed to the original covenantor? On the facts, it seem
yes because there is no issue for the covenant to bind future successors and the
covenant has not changed characteristically.
The second question, does the covenant affect nature, quality , mode of user or
value of the land? On the facts, the answer seems negative because by Harold or
any future successors not attending the ceremony that is organised by boystoy it
has no effect on Mallet, the land. This only will have an effect on the owner of
Mallet and not Mallet itself. Therefore it does not seem to affect the land and thus
may fail.
If the element of touch and concern land fails , the benefits will not pass from
Tom to Harold. Even if we were to try this under Equity, it would also fail under
the touch and concern land element.
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