Restrictive covenants

How is implied assignment done? (Common law)

1) it must touch and concern the land 2) original parties to the covenant must have intended for the benefit to pass to the successors in title. through express wording or s78 of LPA. 3) covenantee must have legal estate in the land 4) transferee holds legal estate as well

How can a third party not named in the covenant enforce the covenant

1) s56 of LPA 1925 2) Contracts (Rights of Third Party) 1999 3) contract provides he can 4) term of contract purports to confer a benefit upon him

Crest Nicholson v McAllister

Confirmed Roake v Chadha. in the case, the benefit of the restrictive covenant was not identified and therefore not annexed.

Roake v Chadha

If there is contrary intention shown in the conveyance restricting passing of the benefit, then s78 will not apply. Also, the benefitted land must be easily ascertainable

Whitgift v Stocks

In the case, "for the vendor's estate" was deemed enough to identify the benefit land. So, any phrase similar like "for the benefit of A's xxx" would be enough.

Restrictive covenant

It is an obligation entered into by deed which affects the use and enjoyment of land of one landowner in favour of another party.

How is express assignment done? (common law)

Must satisfy s136 of LPA. 1) in writing and 2) express notice of the assignment has been given to the covenantor

how can burden pass through equity?

Need to fulfill the rules in Tulk v Moxhay 1) covenant has to be negative 2)covenantee must, at the date of the covenant, have owned land benefitted by the covenant which can be identified. 3) covenant must benefit the dominant tenement 4) burden of the covenant must have been intended to run with the land of the covenantor.

Statutory annexation

Set in s78 of LPA 1925. Confirmed by Federated Homes v Mill Lodge. -if a covenant touched and concerned the land, then the covenant will run with the land for the benefit of his successors in title.

how can benefit pass through equity?

- the covenant is one that benefits and protects the dominant land so the covenant must touch and concern the land -the claimant has a legal or equitable estate in the land of the original covenantee. -the benefit of the covenant has passed to the covenantee through: 1) annexation 2) assignment 3) building scheme.

How can the rule in Austerberry v Oldham Corp be avoided?

1) Chains of indemnity 2)A long lease 3) Rule in Halsall v Brizell 4)Rights of re-entry 5)The grant of a lease 6) a rent charge

How to pass the BENEFIT of the covenant in Common Law?

1) Express assignment 2) Implied assignment

Annexation

Express and Statutory Annexation

How is the running of the burden at law?

General rule is that the burden of the covenant will never run at common law. Austerberry v Corporation of Oldham which was later confirmed in Rhone v Stephens.