Rules in Equity for Passing the Burden: - Only restrictive covenants are enforceable in equity against successor covenantors.
Equitable Rules (BURDEN)
- General rule = burden of a covenant does not pass to it successor at common law (Austerberry v Oldham Corporation)
- Equity then takes over and allows the burden of covenants to pass to successors – this allows enforceability = restrictive covenant =
proprietary right
o Formalities for restrictive covenant = In writing and signed by grantor (LPA 1925 s 53(1)(a))
o A restrictive covenant is a proprietary right (LPA 1925 s 1(3))
Rules in Tulk v Moxhay
1. Covenant is restrictive Rhone v Stephens (Negative) (Positive covenants can only be enforced at common law)
2. Must accommodate dominant tenement (LCC v Allen)
o Covenantee and successor covenantee must hold interest in land at the time of creation and enforcement – there must be a
dominant tenement which must be benefitted
o Covenant must touch and concern the dominant land - P&A Swift – Lord Oliver’s Test:
The covenant benefits only the dominant owner whilst they own the dominant land
The covenant effects the nature, quality, mode of user or value of the dominant land
Covenant is not expressed to be personal
A covenant to pay a sum of money will not prevent it from touching and concerning the land
o Dominant and servient land must be in proximity (Bailey v Stephens)
3. Must be intention for the burden to run
o Expressly (is worded in a way that’s clear successors should be bound)
o Impliedly (LPA 1925 s79) – covenant relating to land shall be deemed to be made by the covenantor on behalf of his successors
in title unless a contrary intention is expressed (expressly excluded)
4. Must be notice of the covenant
o Unregistered land – the covenant must be entered as a D(ii) Land Charge (LCA 1972 s2(5)(ii)). If so, a purchaser will be deemed
to have notice of the covenant (LPA 1925 s1(9)(8)). If the covenant has not been protected by this land charge, a purchaser of a
legal estate will not be bound (LCA 1972 s4(6)). If a successor covenantee has been gifted / inherited – they will still be bound
(Volunteer)
o Registered land – covenant must be protected by entry of a notice in the charges register of the servient title (LRA 2002 s32). If
so, everyone will be bound (LRA 2002 s 29(2)). If not, a purchaser for valuable consideration will not be bound (LRA 2002
1
Land Week 4 Covenant Structures
Equitable Rules (BURDEN)
- General rule = burden of a covenant does not pass to it successor at common law (Austerberry v Oldham Corporation)
- Equity then takes over and allows the burden of covenants to pass to successors – this allows enforceability = restrictive covenant =
proprietary right
o Formalities for restrictive covenant = In writing and signed by grantor (LPA 1925 s 53(1)(a))
o A restrictive covenant is a proprietary right (LPA 1925 s 1(3))
Rules in Tulk v Moxhay
1. Covenant is restrictive Rhone v Stephens (Negative) (Positive covenants can only be enforced at common law)
2. Must accommodate dominant tenement (LCC v Allen)
o Covenantee and successor covenantee must hold interest in land at the time of creation and enforcement – there must be a
dominant tenement which must be benefitted
o Covenant must touch and concern the dominant land - P&A Swift – Lord Oliver’s Test:
The covenant benefits only the dominant owner whilst they own the dominant land
The covenant effects the nature, quality, mode of user or value of the dominant land
Covenant is not expressed to be personal
A covenant to pay a sum of money will not prevent it from touching and concerning the land
o Dominant and servient land must be in proximity (Bailey v Stephens)
3. Must be intention for the burden to run
o Expressly (is worded in a way that’s clear successors should be bound)
o Impliedly (LPA 1925 s79) – covenant relating to land shall be deemed to be made by the covenantor on behalf of his successors
in title unless a contrary intention is expressed (expressly excluded)
4. Must be notice of the covenant
o Unregistered land – the covenant must be entered as a D(ii) Land Charge (LCA 1972 s2(5)(ii)). If so, a purchaser will be deemed
to have notice of the covenant (LPA 1925 s1(9)(8)). If the covenant has not been protected by this land charge, a purchaser of a
legal estate will not be bound (LCA 1972 s4(6)). If a successor covenantee has been gifted / inherited – they will still be bound
(Volunteer)
o Registered land – covenant must be protected by entry of a notice in the charges register of the servient title (LRA 2002 s32). If
so, everyone will be bound (LRA 2002 s 29(2)). If not, a purchaser for valuable consideration will not be bound (LRA 2002
1
Land Week 4 Covenant Structures
