Non-Leasehold covenants

Introduction
 Covenants are personal obligations made by deed and enforced by the rules of contract law, and
the original parties to the covenants can enforce them.
 In order for the covenants to bind successors in title of the original parties, a complex set of rules
must be applied.
 The rules passing to covenants relate to both common and rules and equitable rules.
 Although many rules of non-leasehold covenants are a creation of equity, they are in some ways
similar to easements.
 Positive covenants require the promisor to carry out an activity (e.g. maintain a fence); negative
(or restrictive) covenants forbid the promisor from doing something (e.g. conducting a business
on their land).
 Covenants are relatively easy to enforce between the original parties as the obligations are
contractual in nature; it is when either party sells their land to a third party that the enforceability
of any relevant covenants becomes more complex.
 The question for the land law purposes is when the contractual covenant will bind people who
buy the land from the original contracting parties.
 The first requirement is whether or not the covenant ‘runs with the land’ or ‘touches and concerns
the land’ – that means that the covenant must relate to the land specifically, so that it continues
to be enforceable by whoever owns the land in the future. So, a covenant to polish your neighbor’s
shoes would be purely personal between you and your neighbor and would not relate to the land;
whereas a covenant to maintain the sewerage system on your neighbor’s land would be
something which related to the land itself.
 The benefit of a covenant will pass with the land at common law as a result of s.78 LPA 1925, mas
made clear in Federated Homes Ltd v Mill Lodge Properties Ltd [1980].
 The burden of a covenant will not pass at common law, despite the provisions of s.79 LPA 1925,
as made clear in Rhones v Stephens [1994].
 The benefit of a covenant will also pass in equity as a result of annexation, assignment or a building
scheme.
 The only way of passing the burden of a negative covenant is in equity under Tulk v Moxhay
[1847].
 There is no way of passing the burden of a positive covenant, even in equity, as made clear in
Rhone v Stephens.

9.1 Passing of the benefit and burden

9.2 Passing of the burden at law

9.3 Discharge and modification of restrictive covenants