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Freehold Covenants
Freehold covenants are promises between neighbouring freeholders, distinct from lease
covenants between landlords and tenants. They typically arise when a landowner sells
part of their property while retaining the rest.
Terminology
Covenantor — The person who makes the promise is referred to as the covenantor, and
the land in respect of which it is made is said to have the burden of the covenant.
Covenantee — The person to whom the promise is made is known as the covenantee,
and that person’s land is said to have the benefit of the covenant.
Annexation — Annexation is a term that denotes that the benefit of a covenant is
attached to the land of the covenantee so that it passes automatically to successors of the
covenantee.
Assignment — Assignment refers to the express transfer of the benefit of a covenant to a
successor.
Creation of Covenants
Formalities
📍 Strictly speaking a covenant is a promise contained in a deed, for example, a
promise by one of the parties not to build on land.
Term ‘covenant’ may be applied to any enforceable promise about the use of land even
though it is not contained in a deed.
Both buyers and sellers can enter into covenants.
Covenants—
Freehold Covenants 1
, Amount to a contract → governed by the basic principles of contract law.
However, as it is contained in a deed, consideration is not essential.
Are not capable of being legal interests in land. — not listed in s 1(2) of the LPA
1925, can only be equitable as per LPA, s 1(3))
Can be created expressly by deed. However, as an equitable interest, the minimum
formality requirement is that the interest be created by signed writing (LPA 1925, s
53(1)(a)).
Are usually imposed when a person sells part of the land that they own and are
therefore contained in the transfer → Could include erecting fences or restricting
building for example.
Can be created without land transfer, in exchange for payment
Are typically contained in a deed
Covenants v Easements — Essential Differences
Capabilities of being legal and equitable → An easement is capable of being legal, as
long as it is granted for an interest that is equivalent to an estate in fee simple absolute in
possession or a term of years absolute (LPA 1925, s 1(2)(a)). If it does not satisfy these
requirements, it can only be equitable. In order to expressly create a legal easement, you
have to use a deed; and in the case of land with a registered title, you also have to ensure
that you apply for an entry to be made on the register. Failure to meet these requirements
may mean that the easement is only equitable. An easement may thus be either legal or
equitable. As mentioned above, covenants can only be equitable (LPA 1925, s 1(3)).
Covenants are therefore more flexible than easements. → Judiciary is reluctant to
recognise all rights over land as capable of being easements E.g., An easement cannot be
in the form of a ‘right to a view’ — regarded as too wide a right, and to recognise it
would mean that the landowner claiming it would be able to prevent development taking
place possibly over a wide area of surrounding land. Conversley, if you sell part of your
garden to a neighbour, you can obtain a covenant from the neighbour not to build on it.
This could serve to protect your view, but it is much more limited in its scope as it only
affects the land that you have sold.
Wording used in documents to create easements & covenants is different → To create
an easement a person will either sell land ‘together with the benefit of’, for example, a
right of way, or will grant a right of way. Where a covenant is imposed, the wording
introducing it will be, for example, ‘A covenants with B …’.
Freehold Covenants 2
Freehold Covenants
Freehold covenants are promises between neighbouring freeholders, distinct from lease
covenants between landlords and tenants. They typically arise when a landowner sells
part of their property while retaining the rest.
Terminology
Covenantor — The person who makes the promise is referred to as the covenantor, and
the land in respect of which it is made is said to have the burden of the covenant.
Covenantee — The person to whom the promise is made is known as the covenantee,
and that person’s land is said to have the benefit of the covenant.
Annexation — Annexation is a term that denotes that the benefit of a covenant is
attached to the land of the covenantee so that it passes automatically to successors of the
covenantee.
Assignment — Assignment refers to the express transfer of the benefit of a covenant to a
successor.
Creation of Covenants
Formalities
📍 Strictly speaking a covenant is a promise contained in a deed, for example, a
promise by one of the parties not to build on land.
Term ‘covenant’ may be applied to any enforceable promise about the use of land even
though it is not contained in a deed.
Both buyers and sellers can enter into covenants.
Covenants—
Freehold Covenants 1
, Amount to a contract → governed by the basic principles of contract law.
However, as it is contained in a deed, consideration is not essential.
Are not capable of being legal interests in land. — not listed in s 1(2) of the LPA
1925, can only be equitable as per LPA, s 1(3))
Can be created expressly by deed. However, as an equitable interest, the minimum
formality requirement is that the interest be created by signed writing (LPA 1925, s
53(1)(a)).
Are usually imposed when a person sells part of the land that they own and are
therefore contained in the transfer → Could include erecting fences or restricting
building for example.
Can be created without land transfer, in exchange for payment
Are typically contained in a deed
Covenants v Easements — Essential Differences
Capabilities of being legal and equitable → An easement is capable of being legal, as
long as it is granted for an interest that is equivalent to an estate in fee simple absolute in
possession or a term of years absolute (LPA 1925, s 1(2)(a)). If it does not satisfy these
requirements, it can only be equitable. In order to expressly create a legal easement, you
have to use a deed; and in the case of land with a registered title, you also have to ensure
that you apply for an entry to be made on the register. Failure to meet these requirements
may mean that the easement is only equitable. An easement may thus be either legal or
equitable. As mentioned above, covenants can only be equitable (LPA 1925, s 1(3)).
Covenants are therefore more flexible than easements. → Judiciary is reluctant to
recognise all rights over land as capable of being easements E.g., An easement cannot be
in the form of a ‘right to a view’ — regarded as too wide a right, and to recognise it
would mean that the landowner claiming it would be able to prevent development taking
place possibly over a wide area of surrounding land. Conversley, if you sell part of your
garden to a neighbour, you can obtain a covenant from the neighbour not to build on it.
This could serve to protect your view, but it is much more limited in its scope as it only
affects the land that you have sold.
Wording used in documents to create easements & covenants is different → To create
an easement a person will either sell land ‘together with the benefit of’, for example, a
right of way, or will grant a right of way. Where a covenant is imposed, the wording
introducing it will be, for example, ‘A covenants with B …’.
Freehold Covenants 2
