Term
What are the types of covenant are there?
What are the types of freehold covenant that can be entered into? |
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Definition
i.e.
Preventing building on the land conveyed
preventing more than one house
limiting the property to a particular use - residential
rquring teh building of a boundary wall. |
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Term
| Examples of leasehold covenants which might be entered in: |
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Definition
i.e
A covenant to pay rent
A covenant to repair
A covenant prohibiting assignment or subletting |
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Term
| What are the legal issues that arise when a covenant relates to land and is enforceable by and against successors of the original parties: |
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Definition
- Has the benefit of the covenant run with the land of the covenatee to a successor of the covenantee?
- Has the burden of the covenant run with the land of the covenantor to a successor of the covenantor?
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Term
What are the two common law (UK) rules that apply to the enforceability of leasehold covenants before 1 January 1996?
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Definition
- Rule 1. Privity of Contract - All covenants are mutually enforceable between the original parties.
so even if T1 assigned lease to T2 - T1 is still liable.
- Rule 2. Privity of estate - All covenants which touch and concern the property under lease are mutually enforceable between a successor and an orginal party or between the successor of the original parties.
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Term
| How has the UK Landlord and Tenant (Covenants) Act 1995 (enforced 1 January 1996) affected the enforceabilty of leasehold covenants? |
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Definition
- 'Touch and concern' of the land is no longer so important as s.3 of Act states that the assignees of the landlords reversion are automatically bound by the landlord's covenants and assignees of the tenant's interst are automatically bound by the tenant's covenants.
Rather than the original tenant being liable.
- Abolution of 'privity of contract' in that landlord's previous right to sue origianl tenant for the breaches made by the tenant's (T1) assignees (current tenant - T2)) has been limited.
- (note: common law still applies to leases granted before 1 Jan 1996)
- Situation regarding subtenants unaffected by act. If sublet covenants of headlease cannot be enforced by or against subtenant.
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Term
What is a positive covenant
What are examples of freehold positive covenant's? |
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Definition
A positive covenant requires action or payment therefore:
- to contribute to the maintenance of a driveway
- to repair a fence
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Term
What is a negative covenant
What are examples of negative freehold covenants? |
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Definition
A negative freehold covenant - can be complied with by doing nothing at all - restrictive. I.e.
- to use only as a residence
- not to build more than one house
- not to make any alterations
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Term
Running of the burden.
What happens under common law and what happens under equity?
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Definition
Common law - Does not run.
The burden of a positive covenant (action/payment) does not run - as seen as unfair for successor
Equity law - Restrictive covenant only may pass under Tulk v, Moxhay rules as seen as not unfair not do anything. |
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Term
| At common law - Why can't a positive covenant or burden run with the land? |
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Definition
Austerberry v. Oldham Corp(1885) Involved a freehold covenant to maintain a toll road. Common law decided that the burden does not run with the land because if the covenantor sold - it would be unfair to bind someone to an agreement that they were not a party.
However at equity,in some circumstances the burden of a restrictive covenant is allowed to run. Therefore at common law, the burden of positive covenants will not run with the land. |
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Term
| What should one consider when deciding whether a covenant can be enforced? |
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Definition
Whether the person trying to enforce the covenant has the benefit?
Whether the person against whom the covenant is to be enforced has the burden of it? |
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Term
| Devices to circumvent the rule of Asuterberry v Oldham. (A positive burden will not run with the land) |
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Definition
The doctrine of benefit and burden. Enforcement of positive covenants only work where the landowner enjoys some benefit corresponding to his positive obligation. In Halsall v Brizell (1957) a purchaser of a house on a private housing estate covenanted with the developer that he would contribute to the cost of maintain the roads and footpaths on the estate. Since it was a positive covenant it could not run with the land - however, court held that if sucessors wanted to enjoy the benefit of the roads and footpaths - they must accept the burden of paying for their upkeep.
2.A right of entry
3.Lease the land - rather than sell it in freehold (positive burden can run)
3.Create an easement
4.Chain of indemnity covenants (where successors enter into a deed of mutual covenants. |
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Term
| In equity what was the leading case allowing the burden of restrictive burdens to run with the land? i.e it can be enforced against successors of the original covenantor. |
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Definition
Tulk v. Moxhay. (1848).
ie. equity allows the burden of restrictive covenants to run with the land. ie. to be enforced against successors of the original covenantor. this is because it is not necessarily unfair to bind someone to an agreement to which the were not a party where they can comply by doing nothing at all. |
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Term
| For the rule of Tulk v Moxhay (1848)to apply - what four conditions must be fulfilled? |
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Definition
The covenant must be negative in nature. ie. Not to build; not to carry on any trade or business.
The covenantee must retain land capable of being benefited. i.e A benefitor who sells off his land cannot enforce a restrictive covenant against a successor of the original covenantee. LCC v Allen (1914) a developer covenanted with the council that he would not build on land which lay across the street. The council was unable to enforce this against a successor of the developer since at no time did the council own any land capable of being benefited by the covenant.
3. The parties must intend that the covenant should run.
An intention is deemed to exist in s.79 LPA. so if someone wishes to contest the intention was personal rather than running with the land they must prove it.
4. The covenant must be registered. |
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Term
| What is entailed in the running of the benefit at common law. |
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Definition
Common law
Annexation
benefit must be annexed (attached) to the land. (if four conditions are satisfied: touch and concern/land must be identifiable in terms of covenant/intention for benefit to run/ person seeking to enforce has succeeded to the covenantee's legal estate or for post 1925- a term of years absolute derived from it. s.78 LPA. Smith and Snipes Hall Farm Ltd v River Douglas Catchment Board (1949)
Assignment
Transfer as a 'choose in action' s.136 LPA. choice in action is the right of action which can be enforced in a court of law.(ie. if the original covenantee had a right to bring a court action then that right is passed on |
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Term
| What is entailed in the running of the benefit in equity? |
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Definition
1. Annexation:
s.78 Automatic annexation (Federated Homes case)
2. Assignment:
Benefit assigned to claimant
3. Scheme of development:
Land disposed of in parcels with sets of restrictive covenants. |
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Term
| What is the significance of the Federated Homes Ltd v Mill Lodge Properties Ltd (1980)case? |
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Definition
Running of the benefit through Annexation in equity
- when a covenant is annexed to land it is presumed to be annexed not only to the land as a unit but also to each and every part of the land if parts of the land are purchased by others the purchasers will be able to enforce the covenant. If that is not wanted - the terms must be clear that the benefit is only as a whole rather than in parts. |
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Term
| What does assignment in equity mean? |
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Definition
It simply means that it is an alternative mode of passing the benefit of a restrictive covenant through the successor of the covenantee.
However, if the covenant only stated 'with the vendor' and no mention of 'the land' then it may be held that the benefit was annexed to the vendor and not the land! |
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Term
| What does scheme of development in equity mean? |
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Definition
| this occurs when a landowner disposes of his land in parcels, imposing on each a set of restrictive covenants which are not intended simply for his benefit but benefited by all parcels. |
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Term
| What happens when a claimant wishes to modify or discharge a covenant? |
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Definition
Overview:
1. Approval of the vendor:
If there are no successors to estate - restriction ends. Crest v. Mcallister (2004)
b. Approval should not be unreasonably held. Sim v. Mahon (2005)
c. Intention - either to the land or covenantor. Margersion v Bates (2008)
2. Use:
literal meaning of words used
the context
whether there is any binding authority to be followed
3. Words and phrases:
How something is worded can change its interpretation over time - or not..
dano Ltd v Earl of Cadogan - Housing for the working classes - today that would be lower income groups - the same.
Use
Words and phrases |
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Term
| What can a landowner do when he discovers that his land is apprarently subject to a restrictive covenant which prevents him some use he proposes to make of his land? |
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Definition
Overview:
Application to Chancery Division
Insurance
Discharge at Common law
Application to upper tribunal
Discharge at common law |
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Term
| What does a discharge at common law entail? |
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Definition
if a landowner wishes that a covenant should come to an end - it can be done on three grounds:
1. A change in character in the neighbourhood - covenant no longer relevant
2. The covenant has been released: the covenantee may expressly or by implication release the covenant
3. Common ownership. - If a landowner buys the land that has the covenant - the covenant is extinguished forever. |
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Term
| Under what circumstances can the jurisdiction of the Upper Tribunal (Land chamber)apply? |
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Definition
1. the covenant is obsolete - neighbourhood changed or material circumstances have changed.
2. The persons entitled to the benefit have a greed expressly, by implication from their conduct to the proposed discharge or modification
3. The proposed modification or discharge will not injure the persons entitled to the benefit
4. The restriction impedes some reasonable use of the land.
Compensation - may be given
other restrictions - to modify covenant |
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Term
| Enforcement - when a covenant has been breached and benefiter wishes it to be adhered to. What are the remedies? |
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Definition
An injunction to stop the breach
Damages, by way of compensation for breach
C&G Homes v Secretary of State (1991)
Main points from case
Courts reluctant to find values in neighbourhood declined
Wording of covenant crucial |
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Term
Freehold covenants.
1. What is the first and obvious rule?
2. What happens to a covenant if one or both the parties later sell their land? |
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Definition
1. That the covenants made between freeholders are mutually enforceable between the original parties simply on the basis of the contract between them.
2. If one or both parties later sell their land - the benefit of the covenant can be made to run to successors of the covenantee's (benefitee) land but ..
the burden of a covenant will only run to successors of the covenantors (burdened)if the covenant is restrictive i.e restricts what can be done with the burdened land. (NOT UNFAIR TO DO NOTHING) |
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Term
| To go with Tulk und Moxhay |
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Definition
3. The parties must intend that the covenant should run.
An intention is deemed to exist in s.79 LPA. so if someone wishes to contest the intention was personal rather than running with the land they must prove it.
4. The covenant must be registered. |
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