Freehold Covenants Notes

• - Definition: promise contained in a deed extracted by 1 freehold owner (covenantee) from another (covenantor), whereby covenantor promises to do/not to do something over his land.

  • creation: s53(1)(a) LPA 1925 – in writing signed by covenantor.

  - Structure:

  • 1. identify:

    • parties (original + successors).

    • dominant + servient land.

    • nature of breaches.

    • issue.

    • creation (s53(1)(a) LPA 1925: in writing signed by grantor) – assume valid.

  • 2. equity: negative covs.

    • (consider equity 1^st: burden unlikely to pass at CL (Austerberry v Oldham Corp) + equitable remedies better).

    • burden: 4 requirements (Tulk v Moxhay: negative; accommodate dom. ten.; intention; notice).

    • benefit: touches/concerns land; annexation, assignment or scheme of development.

  • 3. CL: positive covs may pass.

    • burden: generally will not pass; exceptions –

      • indemnity chain.

      • rule in Halsall v Brizell.

    • benefit:

      • express assignment (s136 LPA 1925).

      • implied assignment (P & A Swift Investments v Combined English Stores: touches/concerns land; original parties intend to pass; covenantee + successor hold legal estate in dominant land).

      • Contract (Rights of Third Parties) Act 1999.

  Equity (negative covs. only).

  (consider equity 1^st: burden generally does not pass at CL (Austerberry v Oldham Corp) + equitable remedies better).

  Burden at Equity: 4 requirements (Tulk v Moxhay).

  • (N.B. original covenantor: generally still liable – but practical difficulties + limited to damages).

  - 1. Negative (restrictive): in effect/substance, not wording.

  • test: no action / expenditure of money/time (‘hand in pocket’) (Haywood v Brunswick Permanent Benefit BS).

  • covenant with both positive + negative undertakings:

    • sever negative elements if possible (Shepherd Homes v Sandham (No 2)).

    • overall positive/negative with condition (Powell v Helmsley: ‘not build w/out submitting plans’ negative).

  - 2. Accommodates a dominant tenement: 3 elements.

  • 1. covenantee + successor have interest in dom. land (at creation + enforcement) (LCC v Allen).

  • 2. covenant ‘touches + concerns’ the land: benefits dom. land itself, not merely particular owner.

    • affects mode of use, occupation, nature, value (P & A Swift v Combined English Stores).

  • 3. sufficient proximity (Bailey v Stephens; Rogers v Hosegood).

  - 3. Original parties intended burden to run.

  • express: e.g. ‘the purchaser with intent to bind the land known as X hereby covenants…’

  • post-1926 – statute: s79 LPA 1925 (subject to contrary intention – Morrells of Oxford v Oxford United FC).

  - 4. Purchaser of servient land has notice.

  • registered land: notice in charges section of register (s32 LRA 2002).

  • unregistered land: from 1926 – Class D(ii) land charge; pre-1926 – doctrine of notice.

  Benefit at Equity

  • (N.B. original covenantee: equity unlikely to intervene – no loss).

  • enforcement in equity: both burden + benefit must run in equity (Miles v Easter).

  - 1. Touches + concerns the land: see above.

  - 2. Benefit passes by annexation OR assignment OR scheme of development (Renals v Cowlishaw).

  • Annexation: benefit permanently tied to land at time cov. made passes automatically on transfer.

    • express (Rogers v Hosegood: ‘for benefit of’ dom. land; cf. Renals v Cowlishaw: for benefit of vendor + assignees insufficient).

      • pre-1926 covs: must be expressly annexed (Small v Oliver & Saunders).

    • post-1926 – statute (s78(1) LPA 1925: deemed to benefit covenantee + all successors).

      • wide interpretation: automatically passes benefit (Federated Homes v Mill Lodge Properties).

      • but limits (Roake v Chadha; approved by Crest Nicholson v McAllister):

        • can be expressly excluded.

        • dom. land must be ascertainable from covenant.

    • potential problems with annexation (Re Ballard’s Conveyance):

      • dom. land too large to benefit? (Wrotham Park Estate Co v Parkside Homes: 4000 acres OK).

      • successor of only part of dom. land?: cov. presumed to be annexed to each + every part (Federated Homes v Mill Lodge Properties).

  • Assignment: covenantee assigns to successor at time of transfer must be repeated at every transfer.

    • at time of transfer (Miles v Easter).

    • dom. land must be property identified.

    • formalities: s53(1)(c) LPA 1925 – in writing, signed by grantor.

  • Scheme of development: for housing estates – requirements (Jamaica Mutual Life Ass’ance v Hillsborough Ltd):

    • 1. intention to impose scheme of mutually enforceable obligations.

    • 2. clearly defined area.

  Common Law (may pass positive covs)

  Burden at Common Law

  - General rule: burden will NOT pass to successor (Austerberry v Oldham Corp; Rhone v Stephens).

  - Original covenantor: continuing liability (privity of contract).

  • express: e.g. ‘covenantor covenants for self and successors in title…’

  • post-1926: statute – s79(1) LPA 1925 (subject to contrary intention).

  • BUT imperfect solution: can only obtain damages, not injunction vs. current owner.

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