Lecture 4: Covenants: [Live]:
Restrictive covenants: From contract to a property right:
Developed at the end of 19th century = Tulk v Moxhay
Covenants = contracts made by deeds, between adjoining owners; neighbours [often
created when part of land is sold off by an owner of an own], e.g., when a developer is
selling off individual houses forming an estate, then they may well impose covenants
on each individual purchaser as each house is sold off.
Covenants = restricted what neighbours can do on each other’s land, imposed to
maintain the character of the street
By imposing restrictions on the use of land, to maintain the character and value of
houses on the street = restrictive covenants
Private planning control; only works if those restrictions apply to anybody who
becomes an owner of land [if neighbour sells her land, want to make sure the
restrictive covenants imposed on her land is also enforceable on her purchaser]
Mutual covenants – running of benefit and burden:
Two pieces of land, and both owners [A&B] have covenanted that they will not build
on respective properties then we need to show both the burden and benefit have
passed within the land, have become property rights to be enforceable against AP or
BP
Question: Who has breached the covenant? Who do we want to sue? Running of the
burden; if AP breaches covenant and builds on land, we want to prove AP is under an
obligation to not build because burden of covenant has passed to them. Also, BP who
wants to sue AP for building on land, need to prove BP has the benefit of the
covenant.
Basic Rules:
The burden:
A purchaser of the land;
A person deriving title [lessee or mortgagee] from the covenantor
A squatter
The benefit:
Assignment;
Annexation;
Building scheme
The Rule in Tulk v Moxhay:
- Mr Moxhay was aware of the covenant, and he would be enriched if he could ignore
and build on the land. More valuable than price he paid, because Mr M knew by the
covenant, he was bound by it.
Development of the Rule in Tulk v Moxhay:
Rule developed to require:
1. The burden must be intended to run – presumption in s.79 LPA 1925;
2. Covenantee must own land = London CC v Allen
3. Covenantee’s land must be capable of benefitting from the covenant = Newton Abbot
Co-op v Williamson & Treadgold
4. Registration does not notice = LRA 2002
5. The covenant must be restrictive = Rhone v Stevens
, - Regarding obligation to observe original covenant is based on notice, as courts of
equity developed the rule, they imposed addition requirements:
o Obligations that are not personal but are intended to run with the land, some
connection with the land. Usually, it is easy to prove about user of the land,
not to build e.g., Tulk v Moxhay
[1] Burden must be intended to run – presumption in s.79 lpa 1925 –
covenant relates to land, and needs to be said a personal covenant
[2] Covenantee [person wanting to sue] must own land [must be
capable of benefitting from the covenant] moves from a person right,
to a property right – London cc v allen
Road building the CC was responsible for road building in
London they entered covenant with allen he will not build on
certain land he owned which was ear marker for a new road,
wanted to keep open so they could acquire it from Mr allen,
extension of existing road.
Mr allen = sold road to wife, and she built on the road. London
CC tried to sue Mrs allen for breaching the covenant to not
build on the eland = unsuccessful, did not own any land nearby
which could benefit from covenant. So, benefit of covenant
could not pass to London CC and no land to benefit from
covenant as to pass the burden.
Rather like easements, need two pieces of land for restrictive
covenants to be enforceable.
Prove not only covenantee owned land, but that land is capable
of benefiting from the covenant – use analogy of easements
[accommodation]
Covenantee’s land must be capable of benefit from the covenant –
connected very closely with the land in such a way it benefits the
covenantee’s land.
Registration does not notice see lra 2002
Devonia case – Newton Abbot Co-op Society v Williams’ & treadgold
- Lady who owned Devonia which was an ironmongery shop, owned property across
the street she sold this property and when sold she entered covenant with purchaser
that purchaser of grey land would not be able to use land as an ironmongery shop,
protect the business carrying on in her shop
o When she took the covenant, the wording didn’t say it was for the benefit of
Devonia.
o Both Devonia and land across the street were sold to co-op and Williams &
Treadgold respectively.
- Co-op owned Devonia and the other land was owned by Williams & Treadgold.
Williams & Treadgold started to sell ironmongery, the co-op wanted to sue Williams
and treadgold needed to prove the covenant was capable of benefitting Devonia even
though original wording that had been imposed did not indicate expressly for the
benefit of Devonia.
o Court = in the circumstances surround the creation of the convent more than
evident it was taken for the benefit of Devonia, was not a personal non-
competition covenant, but, a covenant which benefitted the land and therefore
capable of not being a personal contract but was a property right.
Restrictive covenants: From contract to a property right:
Developed at the end of 19th century = Tulk v Moxhay
Covenants = contracts made by deeds, between adjoining owners; neighbours [often
created when part of land is sold off by an owner of an own], e.g., when a developer is
selling off individual houses forming an estate, then they may well impose covenants
on each individual purchaser as each house is sold off.
Covenants = restricted what neighbours can do on each other’s land, imposed to
maintain the character of the street
By imposing restrictions on the use of land, to maintain the character and value of
houses on the street = restrictive covenants
Private planning control; only works if those restrictions apply to anybody who
becomes an owner of land [if neighbour sells her land, want to make sure the
restrictive covenants imposed on her land is also enforceable on her purchaser]
Mutual covenants – running of benefit and burden:
Two pieces of land, and both owners [A&B] have covenanted that they will not build
on respective properties then we need to show both the burden and benefit have
passed within the land, have become property rights to be enforceable against AP or
BP
Question: Who has breached the covenant? Who do we want to sue? Running of the
burden; if AP breaches covenant and builds on land, we want to prove AP is under an
obligation to not build because burden of covenant has passed to them. Also, BP who
wants to sue AP for building on land, need to prove BP has the benefit of the
covenant.
Basic Rules:
The burden:
A purchaser of the land;
A person deriving title [lessee or mortgagee] from the covenantor
A squatter
The benefit:
Assignment;
Annexation;
Building scheme
The Rule in Tulk v Moxhay:
- Mr Moxhay was aware of the covenant, and he would be enriched if he could ignore
and build on the land. More valuable than price he paid, because Mr M knew by the
covenant, he was bound by it.
Development of the Rule in Tulk v Moxhay:
Rule developed to require:
1. The burden must be intended to run – presumption in s.79 LPA 1925;
2. Covenantee must own land = London CC v Allen
3. Covenantee’s land must be capable of benefitting from the covenant = Newton Abbot
Co-op v Williamson & Treadgold
4. Registration does not notice = LRA 2002
5. The covenant must be restrictive = Rhone v Stevens
, - Regarding obligation to observe original covenant is based on notice, as courts of
equity developed the rule, they imposed addition requirements:
o Obligations that are not personal but are intended to run with the land, some
connection with the land. Usually, it is easy to prove about user of the land,
not to build e.g., Tulk v Moxhay
[1] Burden must be intended to run – presumption in s.79 lpa 1925 –
covenant relates to land, and needs to be said a personal covenant
[2] Covenantee [person wanting to sue] must own land [must be
capable of benefitting from the covenant] moves from a person right,
to a property right – London cc v allen
Road building the CC was responsible for road building in
London they entered covenant with allen he will not build on
certain land he owned which was ear marker for a new road,
wanted to keep open so they could acquire it from Mr allen,
extension of existing road.
Mr allen = sold road to wife, and she built on the road. London
CC tried to sue Mrs allen for breaching the covenant to not
build on the eland = unsuccessful, did not own any land nearby
which could benefit from covenant. So, benefit of covenant
could not pass to London CC and no land to benefit from
covenant as to pass the burden.
Rather like easements, need two pieces of land for restrictive
covenants to be enforceable.
Prove not only covenantee owned land, but that land is capable
of benefiting from the covenant – use analogy of easements
[accommodation]
Covenantee’s land must be capable of benefit from the covenant –
connected very closely with the land in such a way it benefits the
covenantee’s land.
Registration does not notice see lra 2002
Devonia case – Newton Abbot Co-op Society v Williams’ & treadgold
- Lady who owned Devonia which was an ironmongery shop, owned property across
the street she sold this property and when sold she entered covenant with purchaser
that purchaser of grey land would not be able to use land as an ironmongery shop,
protect the business carrying on in her shop
o When she took the covenant, the wording didn’t say it was for the benefit of
Devonia.
o Both Devonia and land across the street were sold to co-op and Williams &
Treadgold respectively.
- Co-op owned Devonia and the other land was owned by Williams & Treadgold.
Williams & Treadgold started to sell ironmongery, the co-op wanted to sue Williams
and treadgold needed to prove the covenant was capable of benefitting Devonia even
though original wording that had been imposed did not indicate expressly for the
benefit of Devonia.
o Court = in the circumstances surround the creation of the convent more than
evident it was taken for the benefit of Devonia, was not a personal non-
competition covenant, but, a covenant which benefitted the land and therefore
capable of not being a personal contract but was a property right.
