Restrictive Covenant

Question 1

What are the 2 types of Covenants?

Answer 1

• Positive Covenant = requires landowner to conduct activity
• Restrictive Covenant = refrains landowner from doing something

Question 1

What is a covenant?

Answer 1

A formal promise that is associated w land rather than person. It binds future parties to leasehold, not just OG parties.

Question 2

Why should a covenant be used instead of contractual promise?

Answer 2

• Desire to maintain the character of neighbourhood

Question 3

What are the traits of a Restrictive Covenant?

Answer 3

• Binding on future purchasers/transferees
• ALWAYS benefit DT at the expense of servient tenement

Question 4

Difference between Easement and Restrictive Covenant?

Answer 4

Easement = Facilitating a POSITIVE right for DT owner to do something on ST”s land. Exists at Law and EQUITY
Restrictive Covenant = LIMITING what servient tenement owner can do on own land. Exists ONLY at equity

Question 5

What are the 4 requirements for Restrictive Covenant

Answer 5

1. Covenator must have notice for restriction/burden on their land
2. Restriction on ST must provide benefit to DT
3. Restriction must be intended to run w both plots of land
4. Restriction must be NEGATIVE in nature –> prevents ST from doing sth

Question 6

Does a RC need to be created formally?

Answer 6

No

Question 7

What are 4 ways to discharge a RC

Answer 7

1. Obsolescence pathway (s84(1)(a) PLA) = restriction now rendered as obsolete due to changes in character of property
2. Impingement pathway (s84(1)(a)) = restriction is impeding reasonable use of ST and that removing restriction would not affect the practical benefit of DT
3. Express agreement pathway = owners of DT are in express or implied agreement w ST that RC should be removed (seldom)
4. No Harm pathway = removal/modfication of RC wouuld cause no ‘substantial injuries’ to those entitled to benefit of DT

Only 1 needs to be successful, but try to get all 4 to maximise success