Land Law - Freehold Covenants
Covenantee: person to whom the promise is made / who has the benefit of the
covenant.
Covenantor: person who makes the promise / has the burden of the covenant.
Privity of estate: when parties hold an interest in the same estate - only occurs
between landlord and tenant.
[STEP 1] Annotated diagram showing the various events and benefitted/burdened
land
EDIT DIAGRAM TO FIT FACTS
Y - original
W- Event
covenantor
original (DATE)
(Burden at
covenant
common
ee
law)
Event Event
(DATE) (DATE)
X - successor Z-
covenantee successor
(Benefit at covenantor
common law) (Burden in
(Benefit in equity)
equity)
N.B. If there are multiple covenants, get rid of burden / benefit brackets and just
keep events / dates and label each person as successor or original.
The issue is whether the benefit of the covenant passes to [INSERT SUCCESSOR
COVENANTEE], and if the burden passes to [INSERT COVENANTOR]. If so, X can
, enforce the covenant on Y to stop them from / oblige them to [INSERT EFFECT OF
COVENANT]. This depends on the type of covenant.
[STEP 2] What type of covenant exists?
Positive or restrictive?
Positive covenants require the covenantor to do something. Restrictive covenants
require the covenantor not to do something. The distinction is in the substance, not
form, of the covenant (i.e. whether the covenantor actually has to do something or
refrain from doing something, not whether the wording is positive or restrictive).
This is a positive/restrictive covenant that requires the covenantor to do / refrain from
doing Y for Z.
Touching and concerning land or personal?
A covenant touches and concerns land when (as per P & A Swift Investments):
- 1) the covenant benefits only the reversioner while they own the land (i.e. the
current landlord / freehold owner);
- 2) the covenant affects the nature, quality, mode of use or value of the land;
- 3) the covenant is not expressed as personal;
- 4) the fact a covenant is to pay a sum of money will not prevent it touching and
concerning land if conditions 1-3 are satisfied and it is connected with something
to be done on or in relation to the land.
N.B. unlikely to need point 4 for freehold covenants (they don’t always involve paying
money but usually require doing/not doing something). Leave out if there’s no payment
involved.
The covenant only benefits [INSERT CURRENT LANDOWNER OF LAND WITH
BENEFIT] while they own [INSERT PROPERTY]. It affects the nature / quality / mode of
use / value of the land by [EXPLAIN HOW]. On the facts, the covenant is not expressed
as personal.
[IF 4 N/A] This covenant does not involve money.
Thus, the covenant touches and concerns the land by enhancing the enjoyment of
[INSERT BENEFITTED LAND] while burdening the enjoyment of [INSERT BURDENED
LAND]. / Thus, this covenant does not touch and concern the land, and so is personal.
Covenantee: person to whom the promise is made / who has the benefit of the
covenant.
Covenantor: person who makes the promise / has the burden of the covenant.
Privity of estate: when parties hold an interest in the same estate - only occurs
between landlord and tenant.
[STEP 1] Annotated diagram showing the various events and benefitted/burdened
land
EDIT DIAGRAM TO FIT FACTS
Y - original
W- Event
covenantor
original (DATE)
(Burden at
covenant
common
ee
law)
Event Event
(DATE) (DATE)
X - successor Z-
covenantee successor
(Benefit at covenantor
common law) (Burden in
(Benefit in equity)
equity)
N.B. If there are multiple covenants, get rid of burden / benefit brackets and just
keep events / dates and label each person as successor or original.
The issue is whether the benefit of the covenant passes to [INSERT SUCCESSOR
COVENANTEE], and if the burden passes to [INSERT COVENANTOR]. If so, X can
, enforce the covenant on Y to stop them from / oblige them to [INSERT EFFECT OF
COVENANT]. This depends on the type of covenant.
[STEP 2] What type of covenant exists?
Positive or restrictive?
Positive covenants require the covenantor to do something. Restrictive covenants
require the covenantor not to do something. The distinction is in the substance, not
form, of the covenant (i.e. whether the covenantor actually has to do something or
refrain from doing something, not whether the wording is positive or restrictive).
This is a positive/restrictive covenant that requires the covenantor to do / refrain from
doing Y for Z.
Touching and concerning land or personal?
A covenant touches and concerns land when (as per P & A Swift Investments):
- 1) the covenant benefits only the reversioner while they own the land (i.e. the
current landlord / freehold owner);
- 2) the covenant affects the nature, quality, mode of use or value of the land;
- 3) the covenant is not expressed as personal;
- 4) the fact a covenant is to pay a sum of money will not prevent it touching and
concerning land if conditions 1-3 are satisfied and it is connected with something
to be done on or in relation to the land.
N.B. unlikely to need point 4 for freehold covenants (they don’t always involve paying
money but usually require doing/not doing something). Leave out if there’s no payment
involved.
The covenant only benefits [INSERT CURRENT LANDOWNER OF LAND WITH
BENEFIT] while they own [INSERT PROPERTY]. It affects the nature / quality / mode of
use / value of the land by [EXPLAIN HOW]. On the facts, the covenant is not expressed
as personal.
[IF 4 N/A] This covenant does not involve money.
Thus, the covenant touches and concerns the land by enhancing the enjoyment of
[INSERT BENEFITTED LAND] while burdening the enjoyment of [INSERT BURDENED
LAND]. / Thus, this covenant does not touch and concern the land, and so is personal.
