restrictive covenants - passing the burden & positive covenant
positive covenants don't pass with successors in title
rhone v stephens
Tulk v Moxhay
Covenanted to keep the land in good order & in an open state and uncovered with any building Moxhay not privy to contract but knew about the covenant doctrine of notice applied
requirement 2 = Land had been purchased which was subject to a restrictive covenant. The papers did not disclose the precise extent of the dominant land, the land which benefitted from the restriction
Crest Nicholson Residential (South) Ltd v McAllister - land must be identifiable from a description plan/reference in conveyancing
requirement 2 = case 1
London County Council v. Allen Mr Allen covenanted with the London County Council not to build on land at the end of a proposed street, so that the street could be extended at some time in the future
condition 5 - notice
Unregistered title: at point of purchase Pre 1926 Res Cov - doctrine of notice Post 1925 Res Cov - registered as a Class D(ii) Land Charge Registered title: Registered as a notice on the Charges Register of burdened plot
positive covenant method 3
chain of indemnity = the original covenantor remains liable even when they sell the land = however each new purchase can be made indemnify the original covenantor
positive covenant - method 2
direct covenant = makes a positive covenant with the covenantee (B). However, the covenantor (A) also promises: (a) to require his successor in title (C) to make the same covenant directly with B; and (b) 'to promise to impose the same obligation of direct covenant in turn on his successor'
restrictive covenant definition (only ever equitable in nature)
equitable interest that restrict land use that can run with the land to both benefit and burden successors in title
positive covenant - method 1
estate rentcharge Promise to pay regular sum of money - if you don't Covenantee can attach positive covenant to the rent charge = if you don't pay or breach covenant your land gets reclaimed
positive covenant - method 4
mutual benefit and burden e.g. permission to use pathway so long as they maintain it
condition 1
1) The covenant must relate to the use of the covenantor's land, and not be a merely personal duty initially proving there's dominant and servient land
condition 2
2) The covenant must benefit the land of the covenantee cannot exist 'in gross' - in their capacity as an owner
does the burden run in equity conditions
5
condition 5
5) The current owner of the land must have notice of the covenant
condition 4
The original covenantor must have intended the covenant to run with the land (to bind future landowners) s79 LPA 25 which assumes all covenants made that relate to the use of land are intended to run with the land unless the parties agree to the contrary.
condition 3
The substance of the covenant must be negative (i.e. restrictive), and not be such as to require the covenantor to do something/ especially spend money
key case
Tulk v Moxhay