COVENANTS
Covenants focus on what the owner of the land subject to the covenant should or should not do on their
land
Whereas easements grant the person benefitting from the interest the ability to have an active
role on the other person’s property
Follows the theory of community orientated expectations of responsible land use
Prevails over ‘property absolutism’ (where the holder of a fee simple is ‘king’ of his
estate)
Land is made up of a bundle of rights, some of which belong to other people (owner not
shielded from any interference with his property)
This theory came into prominence in the 19th century with the movement from
communally held open fields to privately owned fields in light of industrialisation when it
became increasingly important that private land did not harm the economic productivity
of the land around it
Land ownership can balance various social and economic interests through planning
permission, or through private freehold covenants (contractual arrangements made
between private citizens), which are an important and sensible means of controlling land
use
Such covenants were also necessary prior to the introduction of public planning laws in
order to prevent unrestrained land use during industrialisation etc.
Covenant- an agreement contained in a deed
Positive covenant- require the covenantor (person making the promise- often the buyer) to do a
specific act or provide a specific service to the covenantee (person to whom the promise is
made/enjoying the benefit of it- often the seller)
Often falls to be a covenant rather than an easement as the law does not like to enforce
positive obligations on any party
Restrictive (negative) covenant- restrain the covenantor from doing a specific act or provide a
specific service to the covenantee
Identifying the type of covenant requires looking at its substance
If the agreement requires the expenditure of money, it is likely to be a positive covenant
Questions of enforcement
Arise as covenants are designed to impose a lasting promise on land
Enforcement between the original covenantor and original covenantee
Always enforceable between original parties (as effectively a contract contained in a deed as a
special form of contract not requiring consideration)
Where the covenantor breaks the deed, the original contractual remedies are available (eg.
damages, injunctions)
Not enforceable by third parties not written into the agreement due to privity of contract, unless
the third party is named as one of the covenantee, where the agreement will be enforceable
without the third party having directly signed it
, However, the LPA 1925, s56(1) slightly modified this position so that ‘a person may take a...
covenant or agreement over or respecting land or other property, although he may not be
named as a party to the conveyance or other instrument’
This has the effect that, if the covenant gives a general description as to the
covenantees, this may be utilised irrespective of the fact that they are not directly
named
Third party must fall under these conditions at the time the covenant was agreed
Re Ecclesiastical Commissioners for England’s Conveyance [1936]- covenantees should
be identified through the descriptive class of persons where they are not directly named
The Contracts (Rights of Third Parties) Act 1999, s1 further relaxed the doctrine of privity of
contract so that a third party may enforce a covenant where it ‘purports to confer a benefit on
him’
Third parties no longer need to be named directly (must only fall within a group
benefitting from the covenant, even if they did not fall under it at the time the covenant
was agreed)
Only applies to covenants agreed after May 10, 2000
Will not apply where the covenantors have expressly excluded the effect of s1 under
s1(2)
Furthermore, there is a lack of clarity whether s1 actually applies to covenants due to the
nature of deeds as a unique type of contract (likely to be expressed explicitly in exams)
Although it is possible to expand the class of people regarded as covenantees, the same cannot
be done regarding the original covenantor
Will only ever be the person who signed to deed to make the promise (cannot impose a
burden on someone who is not party to an agreement)
It is therefore crucial to accurately establish the identity of the original covenantor, as
this has ramifications on their successors in title
Enforcement between original covenantor and successor to the original covenantee
Effectively a question of whether the benefit of the covenant has run with the land of the
original covenantee?
May be done where the covenantee expressly assigns the benefit to the new landowner
At common law, Smith and Snipes Hall Farm v River Douglas Catchment Board [1949], there are
4 requirements which must be met where this transfer is not expressly made
(1) the covenant must touch and concern the covenantee’s land
(2) the covenantee must have a legal estate in that land
Covenants focus on what the owner of the land subject to the covenant should or should not do on their
land
Whereas easements grant the person benefitting from the interest the ability to have an active
role on the other person’s property
Follows the theory of community orientated expectations of responsible land use
Prevails over ‘property absolutism’ (where the holder of a fee simple is ‘king’ of his
estate)
Land is made up of a bundle of rights, some of which belong to other people (owner not
shielded from any interference with his property)
This theory came into prominence in the 19th century with the movement from
communally held open fields to privately owned fields in light of industrialisation when it
became increasingly important that private land did not harm the economic productivity
of the land around it
Land ownership can balance various social and economic interests through planning
permission, or through private freehold covenants (contractual arrangements made
between private citizens), which are an important and sensible means of controlling land
use
Such covenants were also necessary prior to the introduction of public planning laws in
order to prevent unrestrained land use during industrialisation etc.
Covenant- an agreement contained in a deed
Positive covenant- require the covenantor (person making the promise- often the buyer) to do a
specific act or provide a specific service to the covenantee (person to whom the promise is
made/enjoying the benefit of it- often the seller)
Often falls to be a covenant rather than an easement as the law does not like to enforce
positive obligations on any party
Restrictive (negative) covenant- restrain the covenantor from doing a specific act or provide a
specific service to the covenantee
Identifying the type of covenant requires looking at its substance
If the agreement requires the expenditure of money, it is likely to be a positive covenant
Questions of enforcement
Arise as covenants are designed to impose a lasting promise on land
Enforcement between the original covenantor and original covenantee
Always enforceable between original parties (as effectively a contract contained in a deed as a
special form of contract not requiring consideration)
Where the covenantor breaks the deed, the original contractual remedies are available (eg.
damages, injunctions)
Not enforceable by third parties not written into the agreement due to privity of contract, unless
the third party is named as one of the covenantee, where the agreement will be enforceable
without the third party having directly signed it
, However, the LPA 1925, s56(1) slightly modified this position so that ‘a person may take a...
covenant or agreement over or respecting land or other property, although he may not be
named as a party to the conveyance or other instrument’
This has the effect that, if the covenant gives a general description as to the
covenantees, this may be utilised irrespective of the fact that they are not directly
named
Third party must fall under these conditions at the time the covenant was agreed
Re Ecclesiastical Commissioners for England’s Conveyance [1936]- covenantees should
be identified through the descriptive class of persons where they are not directly named
The Contracts (Rights of Third Parties) Act 1999, s1 further relaxed the doctrine of privity of
contract so that a third party may enforce a covenant where it ‘purports to confer a benefit on
him’
Third parties no longer need to be named directly (must only fall within a group
benefitting from the covenant, even if they did not fall under it at the time the covenant
was agreed)
Only applies to covenants agreed after May 10, 2000
Will not apply where the covenantors have expressly excluded the effect of s1 under
s1(2)
Furthermore, there is a lack of clarity whether s1 actually applies to covenants due to the
nature of deeds as a unique type of contract (likely to be expressed explicitly in exams)
Although it is possible to expand the class of people regarded as covenantees, the same cannot
be done regarding the original covenantor
Will only ever be the person who signed to deed to make the promise (cannot impose a
burden on someone who is not party to an agreement)
It is therefore crucial to accurately establish the identity of the original covenantor, as
this has ramifications on their successors in title
Enforcement between original covenantor and successor to the original covenantee
Effectively a question of whether the benefit of the covenant has run with the land of the
original covenantee?
May be done where the covenantee expressly assigns the benefit to the new landowner
At common law, Smith and Snipes Hall Farm v River Douglas Catchment Board [1949], there are
4 requirements which must be met where this transfer is not expressly made
(1) the covenant must touch and concern the covenantee’s land
(2) the covenantee must have a legal estate in that land
