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First Class Land Law Notes (Freehold Covenant)
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Detailed and simple to understand notes on Freehold Covenant. The notes include every principle, case law, exceptions and statues that are important.
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Freehold Covenant Notes1. Nature
Freehold covenants are promises made by covenants (deed) between
freeholders or other persons not in privity of estate, whereby one party
promises to do or not to do certain things on their land for the benefit of the
neighbouring land.
Landowner on whose land the burden lies is the covenantor, and the
landowner on whose land the benefit lies is the covenantee.
A covenant is a promise made in a deed, and is thus enforceable as a
contract between the covenantor and the covenantee, irrespective of whether
contractual consideration is given.
o Deed, this thus means that it must comply with the formalities required
for the execution of deeds found in s. 1 LP(MP)A 1989 (signed, sealed,
delivered)
Usually takes place when a person sells part of their land to another, and
gives covenants as part of the bargain.
In this sense, covenants can be an important source of private planning law,
because they may be used to preserve the character of a neighbourhood by
preventing activity contrary to the status quo, or by limiting the impact of
developments.
Important in large-scale developments, where a web of interlocking covenants
and easements can be used for the benefit of all future purchasers of land
within the development.
In addition, if covenants are able to run with the land (in the sense of
conferring proprietary benefits on one plat of land and proprietary burdens on
another), these obligations may assume a permanence that endures,
irrespective of who comes to own the benefited and burdened plots, in the
future.
Positive covenants require the landowner of the burdened land to take some
action, usually involving money. Such as the covenant to keep one’s own
buildings in good external repair to maintain the character of a
neighbourhood.
Negative or restrictive covenants require the owner of the burdened land to
refrain from some activity on his own land. Example is where a covenant not
to carry on any trade or business on the land because it is intended to
preserve the residential character of a neighbourhood. (Gafford v Graham).
Covenants are promises made by deed by one person to another to do or not
do so something on their own land. They are binding and enforceable as a
matter of contract law between the parties to it. Thus, the original covenantor
must do or not do something he promised to the covenantee. The latter has
the right to sue.
Covenants are also (equitable) proprietary interests in land. They can only
exist in equity as provided for in s1(3) LPA 25.
Burden of the covenant
o Borne by the covenantor’s land
o The contractual nature of a covenant means that the original
covenantor is under the burden of the covenant.
, o He must refrain from doing something (negative or restrictive
covenant), or he must carry out the terms of the promise (positive
covenant)
o Performance of the covenant may pass with the land, and thus all
subsequent persons who come into possession of the original
covenantor’s land may be subject to the burden of the covenant, and
be required to observe its terms.
Benefit of the covenant
o He has the right to sue for performance of the covenant, and may be
awarded damages (for past breaches of the covenant), an injunction
(prevent impending breaches of a covenant), or a decree of specific
performance (compel performance of a positive covenant)
o Again, benefit may run with the land benefited, and may pass to
subsequent owners of it, giving that person the ability to obtain the
appropriate remedy.
Duality of benefit and burden
o Before any covenant can be enforced, it must be shown separately that
the benefit has passed to the claimant, and that the burden has passed
to the defendant.
o Without this duality, there can be no action on the covenant
(Thamesmead Town v Allotey).
o There seems to be a requirement for symmetry about the running of
the benefit and burden. If the claimant is suing at law, the it must be
established that the defendant is subject to the burden at law. Same
case for equity.
2. Law and equity
Historically, this distinction resulted from the different types of remedy
available in a court of law, or in a court of equity.
The willingness of courts of equity to give a remedy against a person other
than the original covenantor caused the evolution of the covenant from a
purely contractual animal (giving remedy at law), to a proprietary one (giving
remedy at first in equity and occasionally in law).
This duality, that a covenant is both a contract and a proprietary obligation,
persists to this day.
2.1 Suing in law
o This is where the claimant claims that the defendant is subject to the
burden of the covenant at law, and should thus pay damages
o However, circumstances in which a remedy lies at law (for damages)
are narrower than the situations in which a remedy lies in equity.
2.2 Suing in equity
o Here, the range of potential defendants is much greater because the
burden of a covenant may run with the land in equity in a way that is
impossible at law
o Discretionary, equitable remedies are available.
o If the claimant sues in equity, then the normal principles of registered
and unregistered conveyancing comes into operation.
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