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