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Law Notes Land Law Notes

Reform Of Covenants Notes

Updated Reform Of Covenants Notes

Land Law Notes

Land Law

Approximately 987 pages

Land Law notes fully updated for recent exams at Oxford and Cambridge. These notes cover all the LLB land law cases and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Hong Kong or Malaysia (University of London).

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Law Commission CP 108 (2008): Reform of Covenants

Reform History – suggestions for reform over the years

  • Number of options have been considered over the years for the reform of covenants:

    • Wilberforce Committee:

      • Problem identified that the burden of positive covenants, as opposed to the benefit =

        • Positive Covenants cannot run with the land

          • Other devices trying to circumvent this restriction = inadequate

      • Proposed to allow positive covenants benefits AND burdens run with the land

        • And that Lands Tribunal have ability to discharge or modify positive covenants

    • Law Com 1967:

      • Two problems identified with restrictive covenants:

        • Enforceability of particular covenants often in doubt

        • Procedure for discharge and modification inadequate

      • Proposals:

        • Creation of “land obligation” created by specified land over other specified land

          • Thus meaning benefit and burden would run automatically with the land

          • More akin to easements than covenants

            • To address this problem, amend s84 of LPA 1925 so that Lands Tribunal have greater powers to modify or discharge obligations.

Case for Reform: 2008

  • Restrictive Covenants

    • Law Com: keep restrictive covenants b/c still useful

      • Reform will cure of defects

      • Planning Law is wide but still need private restrictive covenants b/c:

        • Restrictive covenants cater for private individuals for purposes which planning law doesn’t help

        • Planning Law can’t deal with restrictive covenants as unrealistic to expect planning authorities to concern self with detailed matters for which restrictive covenants now make provision

        • Certain changes of use which neighbour might reasonably object to don’t require planning permission

        • Only planning authorities can enforce planning controls – restrictive covenants needed to allow private individuals to enforce instead.

      • Abolition would lead to Land arbitrarily changing value overnight b/c some rights that were enforceable would no longer be enforceable

      • Preventing freehold covenants will lead to people using leasehold instead where still available – for better or worse.

    • Defects of restrictive covenants

      • Identifying who holds the benefit

        • Currently

          • No need to expressly identify benefitted land if external evidence will show which land it is

          • No requirement for Land Registry to enter the benefit of equitable interest into Land Register

            • Only that such land has restrictive covenants on it

      • Running of benefit and burden

        • Burden can run with land but only after fulfilling complex requirements

        • Similarly, benefits can also run but only after fulfilling even more complex requirements.

      • Liability between original parties

        • Contractual liability still exists between covenantee and covenantor even if they’ve disposed of land

          • Therefore go to extra expense of having to put in indemnity clauses to avoid later being sued despite having no land burdened or benefitted anymore.

    • Defects of Positive Covenants

      • Benefit of positive covenant can run at law

        • But the burden will not run to bind successors either at law or in equity

          • Rules to circumvent this are very complex and insufficient.

          • Distinction made by Lord Templeman in correct but unhelpful for Law’s development:

            • Equity cannot compel an owner to comply with positive covenant without contradicting Privity of contract rule.

          • Is permitted in leasehold that benefit and burden will run at law.

The Case for “Land Obligations

  • Proposed that restrictive covenants and positive covenants reformed:

    • Become one “Land Obligation” which allows positive and negative burdens to be placed on one land for the benefit of another

    • Enforceable by the owners “for the time being” of the dominant land

      • Thus meaning that once X was no longer owner of the dominant land, they could no longer be sued/sue on it

        • Interest would be attached to the land and therefore only enforceable by those with interest in said land.

    • Parties intending to create this benefit would have to label it expressly a “Land Obligation”

      • Mean that no longer necessary to...

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