What restrictions are there over of the use of property - Positive and Restrictive Covenants (Chapter 9).

s78 Law of Property Act 1925 (annexation)

"A covenant ... shall be deemed to be made with the covenantee and his successors in title and the persons deriving title under him or them, and shall have effect as if such successors and other persons were expressed."

How can someone demonstrate assignment with land in equity in respect of enforcing a covenant?

A successor in title can show the benefit of the covenant is assigned if there is an unbroken chain of assignments from the original covenantee to the current owner benefitting from the covenant. If chain is broken, covenant cannot be enforced.

Where are covenants often included?

Transfer deed or express deed of covenant.

What legislation allows applications to the Upper Tribunal (Lands Chamber) to discharge restrictive covenants either fully or partially in certain circumstances?

s84 LPA 1925.

Define positive covenants?

Requirements on the purchaser to do something, e.g. maintain a fence.

Define restrictive covenants?

Restrictions placed on the owner not to do a certain thing, e.g. not to run a business on site.

What are the two types of covenants?

Restrictive and positive.

Who is the covenantee?

The person who receives the covenant.

If a covenant cannot be enforced at common law, what rules can be applied?

The rules of equity.

What are the two exceptions to the common law rule regarding covenants?

1. A chain of indemnity covenants where each undertakes to indemnify his immediate predecessor 2. Halsall v Brizell [1957] - person cannot take a benefit under a deed without subscribing to obligations.

What four conditions were set out in Elliston v Reacher [1908] for a building scheme covenant to be effective?

1. Claimants and defendants must derive title from a common owner 2. Owner must have set out the estate in lots and imposed restrictions prior to the sale consistent with the general scheme of development 3. Owner must have intended restrictions were to be for the mutual benefit of all purchasers. 4. Cs and Ds or predecessors in title must have purchased property on basis that the covenants were to be mutually enforceable by owners of other lots.

When is a purchaser of burdened land bound by a covenant (Tulk v Moxhay [1848] rules)

1. Covenant is negative in nature (restrictive covenant) 2. Burden of covenant intended to pass with land (s79 LPA 1925) 3. Two pieces of land, dominant and servient tenements 4. Covenant benefits dominant tenement 5. Purchaser has notice of covenant (if land unregistered, restrictive covenant must be protected by a Class D(ii) land charge. If land registered, must be protected by Notice (Land Registration Act 2002).

In which circumstances can an application for discharge of a restrictive covenant be made to the UT (Lands Chamber)?

1. Covenant is obsolete due to changes in the character of the property (Chatsworth Estates v Fewell [1931] 2. Continued existence of the covenant would prevent reasonable use of the land 3. Persons entitled to benefit covenant have ether expressly or impliedly consented to its discharge (Shaw v Applegate [1977]). 4. Discharge or modification of covenant will not injure person entitled to the benefit of the restriction.

How to work through enforceability of covenants.

1. Is covenant positive or restrictive? 2. Do the benefit and burden run at common law? 3. If covenant does not run at common law, does it run at equity? (So do the benefit and burden run at equity)?

When will the benefit of a covenant run in common law?

1. The covenant touches and concerns the land of the covenantee - so it benefits the land rather than being personal 2. The original covenantee owned the legal estate in the land to be benefited when the covenant was made. 3. The original parties intended that the covenant should pass with the land. 4. The successor in title derives title form the original covenantee.

What are the two other versions of discharging a restrictive covenant (besides application to the UT).

1. The owners of the land benefiting from the covenant can enter into a deed of release or variation. 2. Where common ownership and occupation (merger) of the land benefitting from the covenant and the land burdened by covenant, the restrictive covenant will be discharged.

Can restrictive covenants be discharged or modified?

Yes.

How would one determine whether a covenant can be enforced?

Apply the common law rules. If the test isn't passed, apply the rules of equity.

Is a covenant between the original covenantor and the original covantee always enforceable?

Yes.

What is annexation in equity?

Covenant will be annexed to land if it can be shown it was entered into with the intention to benefit the land.

Expand on Halsall v Brizell re restrictive covenants.

If a person was permitted to use a right of way and also had to contribute to maintenance of the road surface, then having accepted the benefit, the person would be bound by the burden.

Define positive covenants?

Involve and act and usually expenditure.

What are positive and restrictive covenants?

Legal obligations.

What are restrictive covenants?

Negative.

If someone has the benefit of a covenant at equity can they always enforce?

No, not unless the other party has the burden at equity.

Can positive covenants be enforced at equity?

No.

Can positive covenants be enforced by subsequence owners in equity?

No.

In which case was an example of express annexation given when the covenant was "for the benefit of the covenantees and their heirs and assigns and others claiming under them to all or any of their lands adjoining or near to the burdened land."

Rogers v Hosegood [1900].

How can someone enforce a covenant in equity?

Show that: 1. Covenant touches and concerns his land 2. Benefit was either (a) annexed to the land of the covenantee (b) expressly assigned to the successor in title (c) land is part of a building scheme.

What is the general rule at common law regarding covenants?

The burden of a covenant will not pass to subsequent purchasers; Austerberry v Oldham Corporation [1885] and Rhone v Stephens [1994].

In common law and at equity, what does "touches and concerns the land" mean?

The covenant benefits the land rather than being personal in nature.

Who is the covenantor?

The person who gives the covenants.

Give an example of express annexation.

When the restriction is "for the benefit of the retained land".

When may a covenant in equity be found in a building scheme?

Where a developer imposes mutually enforceable covenants in order to improve the quality of life on the development.

Why was the covenant enforceable in Smith and Snipes Hall Farm Ltd v River Douglas Catchment Board [1949]?

the covenant was to maintain the banks of a river and was intended to run with the land. the covenantee held a legal estate In the land to be benefited and the successor in title derived his title from the original covenantee.