Freehold covenants problem question structure
1. Identify the benefited and burdened land and the various events affecting them, possibly
with a diagram.
- Original covenantor - person who entered into the promise [poor ]-burdened land
- Original covenantee - person who benefits from the promise [happee covenantee (c)
- Figure out who may be benefiting/burdened now that the land has been sold
2. For each covenant, work out whether it is:
- real or personal
- restrictive or positive.
● real - touches and concerns the land (relates to the land itself), can bind new owners
personal - individual benefit, benefit will not pass to a new owner
Use the "Swift" test to figure out whether or not the covenant is real
restrictive -prevents the land being used in certain ways
positive - obliges the covenantee to do something
3. Identify whether/how the covenant has been breached.
Figuring out whether or not the benefit and burden have passed…
4. Explain how the aggrieved party has the benefit of the covenant, using the common law
rules.
- Benefit can pass using common law rules
(a) Express assignment - written in the deed
(b) Automatically IF
i. covenant touches and concerns the land (Swift test satisfied)
Ii. legal estate in the land
ili. benefit was intended to run with the land - words of intention in
the deed, OR intention implied in by s78 LA 1925 hi
5. Explain who has the burden of the covenant using the common law rules.
Burden cannot pass in common law (Austerberry)
6. Explain how the aggrieved party has the benefit of the covenant, using the equitable
rules.
● Rules are the same as Common Law, other than the legal estate requirement.
7. Explain who has the burden of the covenant using the equitable rules.
1. Identify the benefited and burdened land and the various events affecting them, possibly
with a diagram.
- Original covenantor - person who entered into the promise [poor ]-burdened land
- Original covenantee - person who benefits from the promise [happee covenantee (c)
- Figure out who may be benefiting/burdened now that the land has been sold
2. For each covenant, work out whether it is:
- real or personal
- restrictive or positive.
● real - touches and concerns the land (relates to the land itself), can bind new owners
personal - individual benefit, benefit will not pass to a new owner
Use the "Swift" test to figure out whether or not the covenant is real
restrictive -prevents the land being used in certain ways
positive - obliges the covenantee to do something
3. Identify whether/how the covenant has been breached.
Figuring out whether or not the benefit and burden have passed…
4. Explain how the aggrieved party has the benefit of the covenant, using the common law
rules.
- Benefit can pass using common law rules
(a) Express assignment - written in the deed
(b) Automatically IF
i. covenant touches and concerns the land (Swift test satisfied)
Ii. legal estate in the land
ili. benefit was intended to run with the land - words of intention in
the deed, OR intention implied in by s78 LA 1925 hi
5. Explain who has the burden of the covenant using the common law rules.
Burden cannot pass in common law (Austerberry)
6. Explain how the aggrieved party has the benefit of the covenant, using the equitable
rules.
● Rules are the same as Common Law, other than the legal estate requirement.
7. Explain who has the burden of the covenant using the equitable rules.
