Restrictive Covenants Notes
This is a sample of our 6 page long Restrictive Covenants notes, which we sell as part of the Land Law Notes collection, a Distinction package written at Oxbridge in 2013 that contains 527 pages of notes across 187 different documents.
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Restrictive Covenants Requirements for restrictive covenants
Need for a dominant tenement
Need for restrictive covenant to touch and concern dominant tenement o Smith: essentially question of fact = has the land been benefited by the restrictive covenant? Courts will be wide in applying this. o Wrotham Park Estate v Parkside Homes :
The burden of a covenants is enforceable if: o The covenant was entered into for the benefit of the land of the covenantee o The land restricted is sufficiently defined or ascertained. o The restriction is such that an estate owner may reasonably take the view that the restriction remains of value to his estate. o London CC v Allen :
Sedley LJ: you need land that can be benefitted by the burden if you wish to enforce the burden
If you've disposed of any land near to covenantee's land o Then you cannot enforce the covenant. o But three issues remain:
Can a very large estate be said to benefit from a covenant taken on the sale of a small part?
o Probably so long as reasonable
Smith: today, more likely that covenant provide benefit for part of the estate rather than estate as a whole unit o Ergo, if far away part of estate from covenanted land sold off, purchaser of far away part less likely to be held able to enforce covenant.
Types of Covenant
Covenant not to build or covenant not to change use of land is fine o But what about where covenants designed to prevent competition with covenantee's business on neighbouring land?
Hemmingway Securities Ltd v Dunraven Ltd
How far apart?
If covenantee owns properties some distance apart and attempts to impose restrictive covenant on the sale of one of them
Smith: courts probably sympathetic, but long distances may lead to trouble.
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