Covenants

Methods of Covenants Passing in Equity

Annexation, Assignment and Building Schemes

Law Commission Recommendations for Covenants

Replace them with Land Obligations

Formality for Restrictive Covenants

Witten and Signed by the Conferring Parties

Requirements for a Restrictive Covenant

1. "Touch and Concerns" the Servient Land 2. "Touch and Concerns" the Dominant Land - Affects the Land rather than you Personally. 3. Operates in a Negative Way, meaning it limits activities on the land rather than requires them.

5 Exceptions

1. Benefit and Burden 2. Chains of Covenant 3. Direct Covenants 4. Decision in Halsall 5. Use of leasehold title

Aspects of Touching and Concerning Servient Land

1. Must Affect me as regards the Use I make of my Land. 2. The Right should intend to be in Rem, rather than operating only in Personam.

Five Types of Covenant Dispute

1. Original Parties 2. Original Parties plus a 3rd Party 3. Original Covenantee and New Covenantor 4. New Covenantee and Original Covenantor 5. Covenantee and Covenanter Both New

Aspects of Touching and Concerning Dominant Land

1. The undertaking Must Benefit you in your Capacity as the Owner of your Land, rather than in a Personal Capacity. 2. The Covenant must be created with the intention that is should do so.

How many Way to Enforce a Covenant?

13 Different Ways

QF for Tulk

A Covenant not to build on land in the middle of Leicester Square in London was held to be binding to subsequent purchasers of the land.

What is a Covenant?

A Promises Contained in Deeds Concerning Two or more Pieces of Land.

Example

A Restrictive Covenant saying your neighbour cannot build a church on there land, is allowed to prevent bells ringing but isn't allowed because you are an atheist.

Other Way Covenants Arise

Ad Hoc

Case on This Section

Amsprop Trading Ltd v Harris Distribution Ltd (1997): "The true aim of s.56 seems to be not allow third party to sue on a contract merely because it is for his benefit; the contract must purport to be made with him."

Result of Restrictive/Negative Covenants being RiR

Burden (and Benefit?) of the Covenant will Run with the Land

Extension for Restrictive/Negative Covenants

Are a RiR in Land created at Equity

What do Covenants Effect?

Both Original and Successive Owners of the Land

Additional Clause For Disputes Between Original Parties

Covenant includes "The Owners of Land Adjacent to the Land Conveyed."

Result of Express Annexation

Covenant will be Fixed to the Land.

Parties to a Covenant

Covenantor: The person first under-taking the obligation of the covenant. Covenantee: The person first holding the covenant right.

Principle of Positive Covenants

Don't Run With the Land

What type of Right is a Covenant?

Equitable Rights

Types of Annexation

Express, Implied and Statutory

Decision in Halsall

Facts: Buyers of Building plots covenanted that they would contribute to the cost of repairs of sewers and roads that were for the common use. Result: Agreements to contribute to the cost of these repairs was binding on a subsequent owner, on the principle that you cannot take the benefit of these rights yet avoid the burdens of them.

Facts for Austerberry:

Facts: Trustees had land conveyed to them, and in return, covenanted, on behalf of themselves and their heirs to keep the land in good repair (positive covenant). They failed to do so. Result: Common Law will NOT impose obligations (to spend money) on third parties automatically. Positive Covenants do not pass with the land.

Statutory Annexation Case

Federated Homes Ltd v Mill Lodge Properties Ltd (1980)

Case for Positive and Negative Covenants

Halsall v Brizell [1957] -Covenants that contain both benefit and burden are binding.

Binding Nature of Covenants

If created by a Deed, Covenants are binding as a Matter of Contract between the parties.

How do Covenants Usually Arise?

Intentional Conferral, when passing on land from one person to another.

Use of leasehold title

Long Leases can be used to ensure that Covenants will remain Enforceable.

Case/Quote for Positive Covenants Not Running

Lord Templeman in Rhone v Stephens (1997) - "Equity has 'no power to enforce positive covenants against successors in title of the land."

Registration For Restrictive Covenant

Must be Pursuant to s.32 LRA

What will usually be the in the transfer for Ad Hoc?

Not Building in Exchange for Money

Formalities for Covenants

Only Requires Writing as it is Equitable.

Chains of Covenant

Original Covenantee can enforce a Covenant against the Original Covenanter even if they have sold the land. When this happens the original owner will seek Indemnity from the New Owner who will therefore have to perform the Positive Covenant.

Enforceable Nature of Covenants

Original Covenantor must do/refrain from doing, that which they promised to do - so are subject to a Burden. Original Convenantee has the Right to Sue for Performance of the covenant - so enjoys a Benefit.

Breach in Covenant Between Original Parties

Original Parties can Sue Each Other

Original Parties Continued Liability

Original Parties may continue to be liable on the covenant even when they are no longer the land owner

Direct Covenants

Owner of the Benefitting Land may impose a Requirement that the burdened owner Doesn't Sell the land without first Obtaining a Direct Covenant from the buyer to the owner of the benefitting land.

Running With Land: Positive and Negative Cases

Positive Austerberry v Oldham Corporation (1885) Negative: Tulk v Moxhay (1849

Benefit and Burden

Positive Covenant to pay Contributions towards the Upkeep of anything over which an Easement has been granted will be Enforceable.

Types of Covenant

Positive Covenant: A covenant that requires expenditure of money. Negative Covenant: One which restricts what is put on the land and requires no expenditure of money.

Running With Land: Positive v Negative Covenants

Positive: Only Bind the Original Covenantor. Negative: Run with the Land (Bind Future Owners)

What did Halsall Disband?

Rule set out in Keppel v Bailey that only the benefit not the burden runs in a positive covenant.

Rules for Continued Liability

Rules can be found in both Common Law and implied by Section 79 (1) LPA which states that a covenant relating to any land of the covenantor shall be deemed to be made "on behalf of himself and his successors in title."

What did this Case Point To?

Section 78(1) LPA 1925

How to Avoid Continued Liability?

Seller should take out a Covenant with New Owner

Land in Covenants

Servient Land: The land owned by the covenantor as it is the burdened land. Dominant Land: The land owned by the covenantee as it is the benefitted land.

What is Annexation?

The original transaction between me and you annexed the covenant to the dominant land.

What is Express Annexation?

When the Deed which created the covenant show clear annexation.

What is Implied Annexation?

When there is no Mention of Annexation but it is implied from the Covenant

How to Distinguish Between Positive and Negative Covenants?

Whether the expenditure of money is required.

What is Assignment?

While it was not originally annexed to the dominant land, the benefit of the covenant was assigned to Eileen at the transfer of land.

Section for This Clause

s.56(1) LPA 1925