Land Law

Freehold Covenants 2

Lecturer: Jan Maltby

 Enforceability

Meg Annie

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 Enforceability against Successors in Title

MEG ANNIE
Covenantee Covenantor

JACK
buys dominant land
? BOB
buys servient land

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Does the Burden pass in equity?

Tulk v Moxhay
(1848) 2 Ph 774
 The rule in Tulk v. Moxhay:
Four aspects
• The covenant must be negative in substance

• The covenant must accommodate the dominant tenement

• The original parties must have intended that the burden should bind successors

• The person against whom the covenant is being enforced must have notice

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 The rule in Tulk v Moxhay

The covenant must be negative

• Can the covenant be satisfied by doing nothing?

• Haywood v Brunswick Permanent Benefit Building Society ‘hand in pocket’ test
• money, time, energy

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 The rule in Tulk v Moxhay
The covenant must accommodate the dominant
tenement

The orig. covt’ee

and their S.I.T must
have interest in the
dominant tenement
Covenant
when covenant
‘touches and
made (OC)/enforced Proximity
concerns’ land
(S.I.T)
Bailey v
LCC v Allen Stephens

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 The rule in Tulk v Moxhay
The covenant must be negative
Mixed covenants
•Shepherd Homes v Sandham (no 2) [1971]

•Powell v Hemsley [1909]

Split covenant into +ve and

-ve elements

Overall +ve or –ve covenant

‘carries’ a condition
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 The rule in Tulk v Moxhay

The original parties must have intended the

burden to run
• Express wording of covenant
• “…Annie covenants for herself and her successors in title to land
known as “Waggy Tails” and those deriving title under her or
them…”
• “…with the intention of binding land known as “Waggy Tails”
Annie hereby covenants..”

• Implied under s.79 LPA 1925

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 The rule in Tulk v Moxhay
The person against whom the covenant is being
enforced must have ‘notice’ of it under the rules:
actual knowledge is irrelevant

• Unregistered land: Class D(ii) Land Charge

• S.198 LPA 1925: registration = notice to world
• S. 4(6) LCA 1972: if not registered, purchaser of legal estate not bound
• Doctrine of Notice applies for pre-1926 covenants

• Registered land: s.32 Notice on Charges register

• S.32 LRA 2002: registration = notice to world
• S.29 LRA 2002: if not registered, purchaser of legal estate not bound

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 The rule in Tulk v. Moxhay:

NB!
ALL 4 tests must be
met before the
burden can pass in
Equity

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 REMEMBER: the benefit and
burden rules go hand in hand

where the burden runs in equity, the

benefit must be made to run in equity
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 Does the benefit pass in equity?

YES, if it touches and concerns the land and passes in one of 3 ways (Renals v Cowlishaw):
•Annexation
• Express, implied or statutory
•Assignment
•Building schemes

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 Annexation: ‘legal glue’

The benefit of the

covenant is stuck to the
land from the outset in
one of 3 ways:
EXPRESS
IMPLIED (rare)
STATUTE s.78 LPA 1925

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 Annexation: ‘legal glue’
Express - look carefully at wording
• parties intended the benefit to run
• “… for the benefit of land known as ‘Four Paws’”
• “…for the benefit of Meg in her capacity as owner of land known as ‘Four Paws’”
• Rogers v Hosegood
• Renals v Cowlishaw
• Benefits each and every part: Wrotham Park Est Co Ltd v Parkside Homes Ltd

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 Annexation
As interpreted in Unless expressly or
Federated Homes Ltd v impliedly excluded:
Mill Lodge Properties Ltd Roake v Chadha

STATUTORY:
s.78 LPA 1925

ONLY for post-1926

covenants: Crest Nicholson
Small v Oliver Saunders Residential South Ltd
Developments v McAllister
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 Assignment: ‘relay baton’

Benefit must be
passed every time
the land changes
hands:
Miles v Easter [1933]
Ch 611

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 Building Schemes

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Building Schemes: Elliston v Reacher
• All purchasers acquire their property from the same vendor
• The vendor has divided the estate into plots prior to the sales
• The restrictive covenants were intended by the vendor to continue for the benefit of all the plots
• Every purchaser must acquire the plot on the understanding that the covenants benefit all the other plots in the scheme

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 Equitable Remedies
Injunction

Damages

Maxims of equity

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 Discharge of restrictive covenants
• Express
• Implied
• Declaration by court as to nature and extent
• s.84 LPA 1925
• Covenant obsolete due to changes in the character of the neighbourhood
• Covenant impedes reasonable user of land
• Benefited parties have agreed ‘by their acts or omissions’ to discharge
• Benefited parties will not be injured by the proposed discharge or modification

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 Summary of position in equity

The burden may pass in equity

• Tulk v Moxhay

The benefit may pass in equity

• annexation
• express assignment
• building scheme.

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