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Summary Freehold Covenants
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Notes summary on the property law topic of freehold covenants
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Freehold Covenants:The Nature of Freehold Covenants:
An exceptionally important and extensively used method for restricting or controlling use of land, to
avoid undesirable effects on other people and their property is the freehold covenant.
These operate as a kind of private legislation which can govern many aspects of the use of land
(perhaps best evidenced by the schemes of covenants commonly in place on housing estates). A
covenant is a promise or undertaking made by deed by a “covenantor” that s/he will, or will not, do
something in relation to a specified area of land, for the benefit of someone else’s land (the
“covenantee”).
Covenants can relate to freehold land and to leasehold property (which we will look at later in the
course). Freehold covenants provide a private law complement to public law controls on land use
(primarily through the Town and Country Planning system). Together these systems help to regulate
the nature and character of localities. They are like easements (rights of way) in that they provide
people with rights over land belonging to others, but relate to the use of that land by its owners,
rather than use by other people. As with an easement, covenants can prevent development of land
even though planning permission has been granted. They are often, but not always, created when
selling part of land, so that the purchaser’s use of it can be restricted by the seller (who might
remain a neighbour).
Drafting Freehold Covenants:
Despite being made by deed, freehold covenants are always equitable interests – look back at s. 1(2)
of the Law of Property Act 1925 – though the deed requirement means that they can only be made
expressly and cannot arise informally.
Whether drafted in positive of negative form, an obligation either requires someone to do
something positive, or stops them from doing something. There is a difference between requiring
someone not to remove support, and requiring them to maintain support, for example. The former
should not require any effort or expenditure, but simply prevent deliberate removal. The latter
requires positive efforts, and possibly expenditure of money, to ensure that the support is
maintained. Whether someone is/may be required to ‘put their hands in their pockets’ is generally
the key.
Enforcement of Freehold Covenants:
Enforcement of covenants between the original covenantor and covenantee should be familiar to
you - the covenant is merely a contract between the original parties. As such, the doctrine of ‘privity
of contract’ presents no difficulties and the promise can be enforced like any other contractual
commitment with one party having the benefit of the covenant and the other its burden.
Unfortunately, things get a lot more complicated when land is sold on so that it is successors in title
to the original parties who are concerned with enforcement of the covenant. You will see from your
reading that mechanisms exist by which the burden and benefit of covenants can pass to successor
parties, even though they would not be enforceable under pure contract law. This is what gives
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