Are freehold covenants capable of being legal interests in land?
NO. Covenants are NOT capable of being legal. They do not appear in s1(2) LPA 1925, so they are equitable by nature under s1(3) LPA 1925. This is true even if created by deed.
What are the formalities required to create a freehold covenant?
Must be in writing and signed (s53(1) LPA 1925). Usually created by deed (though not required). Can be created by contract.
Define the key terminology: Covenantor, Covenantee, Servient land, Dominant land
COVENANTOR = Person making the promise (burdened) COVENANTEE = Person receiving the benefit SERVIENT LAND = Land burdened by the covenant DOMINANT LAND = Land benefited by the covenant
What is a POSITIVE covenant? Give examples.
A covenant that requires EFFORT or EXPENDITURE to perform. Examples: Paint exterior every 5 years Maintain a fence Contribute to maintenance costs Keep property in good repair ‘Not to allow property to fall into disrepair’ (substance is positive!)
What is a RESTRICTIVE covenant? Give examples.
A covenant that requires NO effort or expense - just restricts use of land. Examples: Not to use for business purposes Not to build on land Only use as private dwelling Not to divide into flats Keep land as open space
How do you distinguish between positive and restrictive covenants?
Look at the SUBSTANCE, not the wording! ‘Not to allow property to fall into disrepair’ sounds restrictive but is POSITIVE because it requires effort/expenditure to comply. Test: Does it require the covenantor to put their hand in their pocket or do work? If YES = POSITIVE. If NO = RESTRICTIVE.
Can the BURDEN of a covenant (positive or restrictive) run at common law?
NO. The burden of a covenant CANNOT pass at common law, whether positive or restrictive. Key cases: Austerberry v Oldham (1885) Rhone v Stephens (1994) This means a successor in title to the original covenantor is NOT bound at common law.
Are the ORIGINAL parties to a covenant bound?
YES. The original covenantor and covenantee are bound by PRIVITY OF CONTRACT. This means: Original covenantor liable FOREVER (even after selling) Liability for BOTH positive AND restrictive covenants Can be implied by s79 LPA 1925 if not express
Can the BURDEN of a covenant run in equity?
YES, but ONLY for RESTRICTIVE covenants. The burden of a POSITIVE covenant CANNOT run in equity. Rule from: Tulk v Moxhay (1848)
What are the 5 requirements for the burden of a restrictive covenant to run in equity? (Tulk v Moxhay)
Covenant must be RESTRICTIVE in substance
Must BENEFIT dominant land retained by covenantee at time of creation
Must TOUCH AND CONCERN the dominant land (P&A Swift test)
Made with INTENT TO BURDEN servient land (express or s79 LPA 1925)
Owner of servient land must have NOTICE of the covenant
What does ‘touch and concern’ mean? (P&A Swift test)
A covenant touches and concerns land if:
(i) It benefits only the dominant owner for the time being (ceases to be advantageous when separated from land)
(ii) It affects the nature, quality, mode of user or value of the dominant land
(iii) It is not expressed to be personal
This test applies to both freehold covenants and lease covenants.
How can ‘intent to burden servient land’ be shown?
Either: EXPRESS words in the document: ‘The Buyer and their successors in title covenant…’ OR IMPLIED by s79 LPA 1925: Automatically implied unless contrary intention shown
What are the 3 methods to indirectly enforce POSITIVE covenants?
CREATE A LEASE - Both positive and restrictive covenants bind assignees of leases
INDEMNITY COVENANTS - Chain of promises between successive buyers
HALSALL V BRIZELL - Mutual benefit and burden doctrine
Explain the INDEMNITY COVENANT method
Each buyer promises the seller to observe covenants and indemnify for breaches Creates a chain: Original → Buyer 1 → Buyer 2 → Current owner INDIRECT enforcement: Original covenantor sued by covenantee, then sues down the chain PROBLEM: Only as strong as weakest link (insolvency/untraceable person breaks chain)
Halsall v Brizell doctrine
MUTUAL BENEFIT AND BURDEN: ‘He who takes the benefit must also bear the burden’
REQUIREMENTS (Thamesmead v Allotey): Burden must be RELEVANT to the benefit Person must have OPTION to renounce benefit
EXAMPLE: Right of way over shared drive + obligation to contribute to maintenance costs
NOTE: Not direct enforcement - can prevent use of benefit if burden not performed 🔑 Key Point: Benefit and burden linked together
Creating a LEASE instead of selling freehold
ADVANTAGES: Both positive AND restrictive covenants bind assignees in leases Direct enforcement against current tenant No need for indemnity chains DISADVANTAGES: Less attractive to buyers Lease must eventually end (not permanent like freehold) Fixed maximum term 🔑 Key Point: Direct enforcement but less attractive
Can the BENEFIT of a covenant run at common law?
YES. The benefit CAN run at common law for BOTH positive AND restrictive covenants. Two methods: ANNEXATION ASSIGNMENT 🔑 Key Point: Benefit runs for both types at CL
Requirements for the benefit to pass by ANNEXATION at common law
Covenant must TOUCH AND CONCERN the land (P&A Swift test)
INTENTION that benefit should run (express or s78 LPA 1925)
Covenantee must have LEGAL ESTATE in benefited land
Buyer must take LEGAL TITLE to benefited land
Note: Legal estate doesn’t need to be identical (tenant can enforce) 🔑
Key Point: 4 requirements for CL annexation
Requirements for the benefit to pass by ASSIGNMENT at common law
Requirements:
Must occur at SAME TIME as transfer of land
Must be IN WRITING and SIGNED
WRITTEN NOTICE to person with burden (s136 LPA 1925)
Express transfer of benefit from assignor to assignee. 🔑
Key Point: Writing + timing + notice
Can the BENEFIT of a covenant run in equity?
YES.
Three methods:
ANNEXATION (express, implied, or statutory)
ASSIGNMENT
BUILDING SCHEMES
This is relevant for RESTRICTIVE covenants (since burden only runs in equity). 🔑 Key Point: 3 methods in equity
What is EXPRESS ANNEXATION?
Clear words showing benefit attached to land: ‘For the benefit and protection of [identified land]…’
REQUIREMENTS:
Use words of annexation
Land clearly IDENTIFIED
Use ‘EACH AND EVERY PART’ for future subdivision
Case: Rogers v Hosegood 🔑 Key Point: Clear words + identified land
What is STATUTORY ANNEXATION under s78 LPA 1925?
AUTOMATIC annexation to each and every part IF:
Covenant created POST-1925
Covenant TOUCHES AND CONCERNS the land
Benefited land IDENTIFIABLE from transfer (with external evidence if needed)
Key case: Federated Homes Ltd v Mill Lodge Properties Can be EXCLUDED by parties (Roake v Chadha) 🔑
Key Point: Automatic post-1925 if conditions met
What is a BUILDING SCHEME?
RECIPROCAL obligations in developments. CHARACTERISTICS: Defined area with common owner Estate laid out in lots Restrictions intended for all lots Buyers purchased knowing restrictions benefit all EFFECT: Creates reciprocal obligations between lot owners (including positive covenants) NOTE: Relatively rare; modern developments tend to exclude them 🔑 Key Point: Reciprocal obligations in developments
Why must you ‘match’ the benefit and burden?
For a successor to ENFORCE a covenant, the way the benefit passed must MATCH the way the burden passed. RESTRICTIVE covenant: Burden passes in EQUITY only So benefit must pass in EQUITY POSITIVE covenant: Burden stays with original (common law contract) So benefit must pass at COMMON LAW to sue original 🔑 Key Point: Match the route: equity with equity
