chapter 17 restrictive covenants

restrictive covenants

restrictive covenants generally placed on titles to ensure the preservation of the character of a particular community . this could be farming residential or commercial community .

Express annexation

Rogers vs hosegood 1900

and has become obsolete

Stevenson vs Levante 1972

Covenant

a covenant is an agreement which creates an obligation

discharge and mortification of restrictive covenants

a restrictive covenant can be discharged or modified where the character of a neighborhood has changed to the extent that the restrictive covenants no longer apply a residential community have slowly adopted commercial status. or a residential community we find that it is now located so close one area that becomes commercial that it makes a good sense to discharge or modify restrictions.

requirements of equity

1.the Covenant must be restrictive or negative . Haywood V Brunswick permanent benefit Building Society 1881 2. the covenantor must accommodate the dominant tenement . London County Council v Allen 1914 3. covenants must be intended to run with the covenanters land

extinguishing restrictive covenants

where both the dominant and servient tenement become owned by the same person that restrictive covenants are extinguished. except in a development scheme

Express annexation

where words of annexation are used , the benefits of the covenant is a annexed or attached to the land so that's Forever After it passes automatically with the land to the new owner .

implied annexation

words of Express annexation are lucky some cases suggest that it may be possible for the court to identify benefited land by looking at the circumstances . where the facts are held to indicate with reasonable certainty that the land which is to be benefited the benefit will there after work with the land this way of proceeding is called implied annexation .

implied annexation

Jamaica mutual Life Assurance Society V Hillsborough limited 1989

conditions of restrictive covenants Elliston the Witcher 1908

1. The area of the scheme must be clearly defined 2. the vendor must have laid out the estate in plots or sold plots of a size with the producer required 3. the vendor must have extracted restrictive covenants from the Producers 4. each purchaser must have covenant the Covenant are enforceable against each other the vendor must have intended the restrictive covenants for the benefits of all the plots are sold in the scheme

elements of a covenant

1. mutual benefits and benefits and burden 2. mutual obligations 3. Presence of consideration 4. enforceability as a contract

benefit in equity

1. where the covenantee or assignee are merely equitable owners of the Land benefited 2. where do covenants or is no longer the owner of the servient tenement but I assigned it so that the enforcement against the assignee of the servient tenement depends upon the rule of Tulk v moxhay 3. we're only part of the benefited land is assigned to the plaintiff since at common-law the benefit cannot be assigned in pieces. 4. where the plaintiff relies upon his land being part of the scheme of development

Annexation

allows the purchaser of the benefited Land to acquire rights to enforce covenants .

statutory annexation

federation Homes Ltd V mill Lodge Properties Ltd 1980

Burden in equity

in order for a burden to be enforceable it must possess the following: 1. the burden must have been intended to run with the land and the Covenant must be negative by Nature 2. the benefits must have been made to benefit the land which the covenantee held at the time he made the Covenant

Burden at common law

rhone V Stephens 1994 austerberry V Oldham corporation 1885

burdens at common law

the basic rule is that the burden of covenants does not run at common law. austerberry V Oldham corporation 1885

test of substance

the test of restrictive covenants is always a test of substance this is if the covenantor is required to put his hand into his pocket the covenants cannot be negative in nature.