Freehold Covenants Problem Question Structure
State who covenantor and covenantee are and what the dominant tenement
and servient tenement is, then state who the successor in title of both lands
are.
Then state whether there has been breaches of the covenants and how.
Have the covenants been created properly?
Through s.53 (1a) LPA 1925; in writing and signed by covenator (person
making the promise).
Covenants are continued in transfer deed.
Burden at equity – burden passed at equity – Tulk v Moxhay four requirements.
a) Covenant must be negative in substance; this is about substance not form.
It’s not about what the covenant says, it’s about the effect of the covenant –
there must be a restriction. If action/expenditure is demanded, it is positive –
Hayward v Brunswick (‘Hand in pocket’ test).
b) Covenant must accommodate dominant tenement; covenant must benefit
to the land, not the person (enjoyed by the landowner for the benefit of the
use of that land).
Apply to all (negative) covenants at once.
c) Original parties intended burden to run – includes expressly stated
intentions, or implied intentions s.79 LPA (unless excluded, s.79 will have the
affect for the burden to run)
d) Notice – the successor in title of the servient tenement must have
notice.
The notice must be registered on the charges register, if for registered land
s.32 LRA 2002 or for unregistered land – class d2 land charge.
Successor would be bound if notice is registered – s.29 (2).
If notice not registered, then purchaser of valuable consideration won’t be
bound s.29 (1).
Where notice is not entered a purchaser is deemed to have notice if they've
inherited or been gifted the servient land and the covenant will amount to an
interest that can override the position on the register.
Benefit at Equity
1) Must touch & concern the dominant land (briefly come back to your argument as
to why the covenants touch and concern the land).
2) Then you have to show it passed either via – assignment or annexation.
Assignment – deliberately passing benefit from yourself to next person. Assignment
requires action between owner and successor of dominant land – must be in writing,
and signed by person that’s assigning benefit in order to comply with s.53(1a) LPA. If
this is done at the time of the sale of the land, then it is effective. Is there any
evidence of assignment? If it hasn’t been assigned then discuss annexation.
Annexation – where benefit is attached to the dominant land, it becomes part of the
dominant land, so there’s no need to assign the benefit after this.
Three forms of Annexation:
1) Express annexation
2) Implied annexation
State who covenantor and covenantee are and what the dominant tenement
and servient tenement is, then state who the successor in title of both lands
are.
Then state whether there has been breaches of the covenants and how.
Have the covenants been created properly?
Through s.53 (1a) LPA 1925; in writing and signed by covenator (person
making the promise).
Covenants are continued in transfer deed.
Burden at equity – burden passed at equity – Tulk v Moxhay four requirements.
a) Covenant must be negative in substance; this is about substance not form.
It’s not about what the covenant says, it’s about the effect of the covenant –
there must be a restriction. If action/expenditure is demanded, it is positive –
Hayward v Brunswick (‘Hand in pocket’ test).
b) Covenant must accommodate dominant tenement; covenant must benefit
to the land, not the person (enjoyed by the landowner for the benefit of the
use of that land).
Apply to all (negative) covenants at once.
c) Original parties intended burden to run – includes expressly stated
intentions, or implied intentions s.79 LPA (unless excluded, s.79 will have the
affect for the burden to run)
d) Notice – the successor in title of the servient tenement must have
notice.
The notice must be registered on the charges register, if for registered land
s.32 LRA 2002 or for unregistered land – class d2 land charge.
Successor would be bound if notice is registered – s.29 (2).
If notice not registered, then purchaser of valuable consideration won’t be
bound s.29 (1).
Where notice is not entered a purchaser is deemed to have notice if they've
inherited or been gifted the servient land and the covenant will amount to an
interest that can override the position on the register.
Benefit at Equity
1) Must touch & concern the dominant land (briefly come back to your argument as
to why the covenants touch and concern the land).
2) Then you have to show it passed either via – assignment or annexation.
Assignment – deliberately passing benefit from yourself to next person. Assignment
requires action between owner and successor of dominant land – must be in writing,
and signed by person that’s assigning benefit in order to comply with s.53(1a) LPA. If
this is done at the time of the sale of the land, then it is effective. Is there any
evidence of assignment? If it hasn’t been assigned then discuss annexation.
Annexation – where benefit is attached to the dominant land, it becomes part of the
dominant land, so there’s no need to assign the benefit after this.
Three forms of Annexation:
1) Express annexation
2) Implied annexation
