Freehold Covenants

State who covenantor and covenantee are and what the

dominant tenement and servient tenement is, then state who the
successor in title of both lands are. Then state whether there
has been breaches of the covenants and how.
Have the covenants been created properly? Through .53(1a) LPA
1925; in writing and signed by covenator (person making the
promise. Covenants are continued in transfer deed.
Burden at equity - burden to be passed at equity, there's a test
for this. - tulk v moxhay sets out four requirements.

a) Covenant must be negative in substance; this is about

substance not form.
It's not about what the covenant says, it's about the effect of the
covenant - there must be a restriction. If action/expenditure is
demanded, it is positive -
Hayward v Brunswick ('Hand in pocket' test).
о
Apply to all covenants at once - if there's a mixture of negative
and positive obligations then apply Shepherd Homes v Sandhum
and split the 2 covenants in half and treat them separately. If it
would be illogical to separate them then apply Powell v Hemsley,
which would mean the covenant should be interpreted as a neg
or pos depending on whichever element is more dominant should;
one element can be classified as merely a condition on the other
overal obligation.
b) Covenant must accommodate dominant tenement: covenant
must benefit to the land, not the person (enjoyed by the
landowner for the benefit of the use of that land).
Covenantee + his successor must have retained dominant land
at creation of covenant and enforcement respectively - LCC V
Allen.
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Proximity - must live near to each other - Bailey v Stevens/Kelly v
Barrett
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Covenant 'touches & concerns' the dominant tenement. Must
benefit the land rather than the person- Marquees of Zetland v
Driver.
Three sub-tests to this requirement (PA Swift):
 1) benefits estate owner for the time being (must benefit
any owner whilst he owns land)
 2) must affect nature/quality/mode of use of dominant land,
3) not expressed to be personal (must be relevant to future
owners) note: - anti competition covenants can touch and
concern land, on the basis if the dominant land is a business
property, then things which benefit the business on that land
may benefit any owner of that land) - Newton Abbott v Treadgold
 4*) covenant to pay money could be allowed if it's to
maintain the dominant land.
 Wrotham v Parkside (Obiter comments): most restrictions
could be deemed to touch and concern land because, put
simply, the less vour neighbour can do with his land the
quieter your life as a dominant owner is going to be.
Apply to all (negative) covenants at once.
c) Original parties intended burden to run - includes express|
stated intentions, or implied intentjons s.79 LPA (unless
excluded, s.79 will have the affect for the burden to run)
c) Notice - the successor in title of the servient tenement must
have notice. The notice must be registered on the charges
register, if for registered land s.32 LRA 2002 or for unregistered
land - class d2 land charge.
Successor would be bound if notice is registered - s.29(2). If
notice not
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registered, then purchaser of valuable consideration won't be
bounds 29(1).
Where notice is not entered a purchaser is deemed to have
notice if they've inherited or been gifted the servient land and
the covenant will amount to an interest that can override the
position on the register.
Benefit at Equity
1) Must touch & concern the dominant land (briefly come back to
your argument as to why the covenants touch and concern the
land).
2) Then you have to show it passed either via - assignment or
annexation or scheme of development (renols v cowlishaw)
Assignment - deliberately passing benefit from yourself to next
person. Assignment requires action between owner and
successor of dominant land - must be in writing, and signed by
person that's assigning benefit in order to comply with s.53(1a)
LA. If this is done at the time of the sale of the land, then it is
effective. Is there any evidence of assignment? If it hasn't been
assigned then discuss annexation.
Annexation - where benefit is attached to the dominant land, it
becomes part of the dominant land, so there's no need to assign
the benefit after this. Benefit becomes part of the land -"legal
glue"
Three forms of Annexation:
Express annexation
Implied annexation
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Statutory annexation - .78 LPA - automatically annexes the
benefit (Federated Homes v Mill Lodge). Rooke v Chadha & Crest
v Nicholson v McAllister, limit the operation on s.78. Rooke v
Chadha, held that you can exclude s.78 by stating something like
"this covenant should only benefit those who are expressly
assigned"
Crest v Nicholson v McAllister: in order for s.78 to apply it needs
to be clear from when the covenant is being made, what the
benefited land is.
Conclude: will the covenants pass both in terms of burden &
benefit.
Remedy: equitable remedies like injunctions are available.
( Share
Burden at common law (For positive covenants, remaining, that
couldn't pass at equity)
Burdens do not pass at common law, usually stays with original
coventator (Austerberry). Privity of contract applies. However,
there are exceptions to this rule.
Halsall v Brizell - "mutual benefit and burden rule" - if
performance of an obligation is quid pro quo with gaining a
specific external benefit in return then you cannot enjoy the
benefit without submitting to the burden. For e.g. paying for
water supply or electricity/maintenance costs. It's unfair if
successor enjoys the private water supply without paying for his
share (burden). You cannot take the external benefit and avoid
the burden and vice versa. Discuss whether there are other ways
in obtaining
• water/electricity?
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There has to be specific connection between benefit and burden:
Rhone v Stephens
Thamesmead v Allotey - benefit can't be something that you are
forced to take, must be something you can choose to opt out of.
Apply to each covenant.
Indemnity chain (not reliable): These don't transfer the burden,
but, in a transfer deed coventator can be made to make a
promise that if theres any problems with future successors then
he will have to pay back the original c'ee; by providing a means
of recovery for someone else breach. Original owner can sue
original covenanter if certain covenants cannot pass through the
above method. The original covnenator remains liable on the
covenant throughout the course of his life - s.79.
• Because of privity of contract, he was the one that was under
the obligation. The only remedy you can get from such covenants
that cannot pass is damages
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(Tophams Limited v Earl). You cannot get specific performance because they
don't own the land anymore.
Benefit at common law
The benefit passes at common law, a) express assignment, in writing, from person
with benefit to the new person.
s. 136, to assign benefit at common law it needs to be in writing signed by person
assigning the benefit, and there needs to be a notice to the person with the burden
that the benefits been assigned. If you don't know, there are alternatives.
Alternatives. PA Swift, created an implied passing of the benefit; providing that the
four conditions are satisfied; a) touch concerns land not the person b) original parties
must have intended for the benefit to pass (apply s.78 - automatic passing, unless
excluded) c) original c"ee held the legal state in dominant land (freehold or leasehold
only - equitable interest wont count), d) successor of dominant land holds legal estate.
Apply and establish whether positive covenant has passed under common law.
Conclude.
Remedies; damages.

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