A more recent version of these Restrictive Covenants notes – written by Oxford students – is available here.
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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 :
? Brightman J:
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:
? Large Estates
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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