EQUITABLE RULES
GENERAL RULE: BURDEN DOES NOT PASS TO COVENTOR
So cannot be enforced against new owners of servient land
Equity has developed rules THAT ALLOW THE BURDEN TO PASS TO NEW OWNERS.
BURDEN: RULE IN TULK V MOXHAY (1848)
1. Covenant must be restrictive. Rhone v Stephens 1994
▪ [if positive – common law rules apply]
2. Must accommodate dominant tenant
a) Coventee and Coventor must hold interest in land at the time of creation and
enforcement. LCC v Mr Allen – LCC had retained no land capable of being
benefitted when it sold the land to Mr Allen.
b) Covenant must touch and enforce the land (basically it must direct beneficial
impact on the dominant land - same as easements)
c) Dominant and servient land must be in proximity. (don’t need to be touching, just
close)
3. Must be an intention for burden of covenant to run
▪ EXPRESSLY – written in such a way that its obviously meant to bind successors.
▪ IMPLIEDLY LPA 1925 S 79 ‘Covenant relating to land shall be deemed to be
made by the covenantor on behalf of his successors in title, unless a contrary
intention in expressed.
4. Must be notice of the covenant.
Depends on whether it has been properly protected by registration
▪ REGISTERED LAND; Notice on charges register of servient title (LRA 2002 s 32)
▪ UNREGISTERED LAND: CLASS D(III) LAND CHARGE
If not done – volunteer (gift recipient) WILL be bound. Equity’s darling will not.
BENEFIT
Two elements
1. The covenant must TOUCH AND CONCERN DOMINANT LAND basically it must direct
beneficial impact on the dominant land - same as easements)
2. Benefit must pass by one of the methods in RENALS V COWLISHAW 1878
RENALS V COWLISHAW
GENERAL RULE: BURDEN DOES NOT PASS TO COVENTOR
So cannot be enforced against new owners of servient land
Equity has developed rules THAT ALLOW THE BURDEN TO PASS TO NEW OWNERS.
BURDEN: RULE IN TULK V MOXHAY (1848)
1. Covenant must be restrictive. Rhone v Stephens 1994
▪ [if positive – common law rules apply]
2. Must accommodate dominant tenant
a) Coventee and Coventor must hold interest in land at the time of creation and
enforcement. LCC v Mr Allen – LCC had retained no land capable of being
benefitted when it sold the land to Mr Allen.
b) Covenant must touch and enforce the land (basically it must direct beneficial
impact on the dominant land - same as easements)
c) Dominant and servient land must be in proximity. (don’t need to be touching, just
close)
3. Must be an intention for burden of covenant to run
▪ EXPRESSLY – written in such a way that its obviously meant to bind successors.
▪ IMPLIEDLY LPA 1925 S 79 ‘Covenant relating to land shall be deemed to be
made by the covenantor on behalf of his successors in title, unless a contrary
intention in expressed.
4. Must be notice of the covenant.
Depends on whether it has been properly protected by registration
▪ REGISTERED LAND; Notice on charges register of servient title (LRA 2002 s 32)
▪ UNREGISTERED LAND: CLASS D(III) LAND CHARGE
If not done – volunteer (gift recipient) WILL be bound. Equity’s darling will not.
BENEFIT
Two elements
1. The covenant must TOUCH AND CONCERN DOMINANT LAND basically it must direct
beneficial impact on the dominant land - same as easements)
2. Benefit must pass by one of the methods in RENALS V COWLISHAW 1878
RENALS V COWLISHAW
