Restrictive Covenants

A covenant not to sell to certain relatives is a

personal right, not an interest in land

Classic example

prohibiting the use other than as a single, private dwelling-house (not to run a business on the land)

Federated Homes v Mill Lodge

the law on annexation used to be complicated but annexation is now largely regarded as automatic

Haywood v Brunswick PB Building Society

Covenant must be negative: question of substance, not form. Does it require expenditure?

Elliston v Reacher

Special rules allow restrictive covenants on a housing estate to be enforced by and against any owner of a house on the estate

Renels v Cowlinshaw

Two conditions needed for the benefit to pass in equity: 1) Touch and concerns land (P&A Swift) 2) Successor must become entitled to it, either through annexation, assignment or scheme of development.

It is not merely a personal covenant

but an equitable interest in land

A RC is an

equitable interest

RC

restrict what can be done on the premises

LPA 1925 S79

Parties intending the burden to run in equity can be implied under this statute.

Rhone v Stevens

Positive covenants cannot be enforced in equity.

it will only be enforceable against the owners for the time being of each house if they have been protected by registration.

a RC needs to be protected by registration

The person seeking to enforce the covenant must have

a legal estate in the land benefited by the covenant

A RC requires

a restriction on the use of land, can't require a positive obligation (positive covenant - such as 'must pay fees for..', 'must paint house every 2 years' etc)

A restrictive covenant is

an agreement between two estate owners limiting the use of the land of one of them for the benefit of the other

In addition the benefit of the covenant must have been

annexed (Added) to the legal estate

There has to be 2

estates in land (not named dominant and servient, but benefit and burden)

A covenant can be personal/positive but to be an interest in land

it must be restrictive

A restrictive covenant can only be enforced by someone other than the original covenantee if

it touches and concerns the land, in other words, it must not be a purely personal covenant.

RC can only be enforced against someone other than the original covenantor if they are

registered by and against the landowners for the time being

As an equitable land law right

they can bind a purchaser, the sale can be subject to a RC therefore the benefit/burden can be passed

RC can only be enforced against someone other than the original covenantor if

they have notice of it

Tulk v Moxhay (Burden in equity)

1) Covenants must be negative 2) Must accommodate the dominant tenement a) Original covenantee must have interest in land at time of creating covenant. Successor must have interest at the time of enforcement. b) Touch and concern land (P&A Swift) c) Servient and dominant land must be proximate (Bailey v Stevens) 3) Original parties must intend burden to run 4) Notice

Newton Abbott v Williamson & Treadgold

A covenant to prevent someone setting up a business can touch and concern land.

P & Swift Investments v Combined English Stores

This case also outlines the test required for the benefit to pass at common law: 1) Covenant must touch and concern land 2) Original parties must intend for benefit to pass (Dyson v Forster). 3) At time of creation, covenantee must have legal estate. 4) Successor must have legal estate too.

Halsall v Brizell

This is one of the few means of passing the burden at common law. For this to occur, the burden must also carry with it a benefit. However, it has several conditions: 1) The benefit and burden must have been conferred in the same transaction (Davies v Jones). 2) Must pass the Thamesmeade test: a) Condition of discharge had to be relevant to the benefit. b) Successor in title have to have choice over whether to take the benefit or not.

Annexation

This method effectively nails the benefit to the dominant land.

P & A Swift Investments v Combined English Stores

Touch and concern land: 1) Covenant must only benefit the reversioner 2) Covenant affects the nature and quality and value of the land. 3) Covenant is not expressed to be personal. 4) Doesn't need more money to be carried out.

Thamesmeade Town v Allotey

Two part test for conditional benefit under Halsall v Brizell: a) Condition of discharge had to be relevant to the benefit. b) Successors in title have to have a choice over acquiring the benefit.