The covenant is a promise to do or not to do something related to the land.

It is
not an easement because it is not a grant of property interest, but rather A
CONTRACTUAL LIMITATION or promise regarding land.

Negative Covenant - Promises to refrain from doing something related to the

land e.g. promises not to build on land for commercial purposes.
Affirmative/positive covenant - Promise to do something related to the land
e.g. promises to maintain a fence.

Covenantor person subject to the obligation.

Covenantee person receiving the benefit of a Covenant.

Austerberry v Corporation of Oldham

- at law, the burden of a positive covenant affecting the land does not run
with the land
- In equity, a covenant can bind successors of the covenantor

Rhone and Stephens

- cannot enforce positive covenants against successors (not in common law
or equity)

Tulk v Moxhay
To enforce a covenant in equity:
1. covenant must be negative (restrictive) in substance;
2. the covenant must benefit the covenantee's land;
3. at the time the covenant was created there must have been an
intention that the burden of the covenant should 'run with' the
covenantor's land so as to bind successors in title
4. the assignee took with notice of the covenant.

** The burden (i.e. positive covenant) cannot run with the land. Only the
benefit (i.e. negative covenant) can run with the land, Austerberry
** No privity of contract is needed to be shown, Smith v Snipes

rebuttable presumption that the burden of a restrictive covenant

70A(1) Conveyancing
created after 1 January
Act
1931 is intended to run with the land

requires the instrument creating a covenant

to clearly indicate which land is benefited otherwise the covenant is
s88(1) Conveyancing Act
not enforceable against the covenantor's successors in title. Applies to
both OSTL & TTL.

enforcement of covenants under registered plans. Applies to TT &

s88B Conveyancing Act
OST.

prescribes formal requirements for creating

s88(1) Conveyancing Act
A valid covenant must be under Torrens Title Registration System:
1. restrictive (privity of contract), Tulk v Moxhay
2. The purchaser must have taken with notice of the covenant, Tulk v
Moxhay
3. The benefit must touch and concern the land benefited, Rogers v
Hosegood
4. If the land to be benefited includes many divisions, the covenant must
include express words to the whole land, Ellison O’Neill
5. The covenant (agreement) must not have used words to rebut
presumptions in s.70 and s.70(a) Conveyancing Act
6. The covenantee must own the land benefited at the time the covenant is
created; Kerridge v foley