Covenants PQ Checklist
Running of the Benefit
1. s56 – allows person to take the benefit despite not being named as a party to the
conveyance if (Re Ecclesiastical Commissioner’s Conveyance)
a. Must purport to be with C (Re Ecclesiastical Commissioner’s Conveyance; Beswick v
Beswick per Lord Upjohn)
b. C must be in existence at the time of the covenant (Re Ecclesiastical Commissioner’s
Conveyance)
2. Assignment
a. Must be in writing (s136 LPA)
b. Must be at the same time as the conveyance of the land (Re Union of London)
c. Must identify the land with sufficient clarity that it can be seen with reasonable
certainty on extrinsic evidence (Newton Abbot Co-operative v Williamson &
Treadgold)
3. Annexation
a. Covenant must ‘touch and concern’ the land (Smith & Snipes Hall Farm v River
Douglas CB)
i. Four tests of Lord Oliver in P&A Swift v Combined English Stores for
leasehold covenants are relevant:
1. Whether the covenant would cease to have any benefit if it did not
run?
2. Whether the covenant affects the nature, quality, mode of user, or
value of the land?
3. Covenant is not expressed to be personal
4. If the covenant is to pay a sum of money, if it is connected with
something to be done to, or in relation to, the land?
b. s78 LPA affects a statutory annexation to ‘each and every part of the land’
(Federated Homes v Mill Lodge Properties)
c. s78 can be excluded by a contrary intention (Crest Nicholson v McAllister CA
confirming Roake v Chadha)
d. Must identify the land to be benefited expressly or by necessary implication,
sufficient if the conveyance describes it in terms which enable it to be identified by
extrinsic evidence (Crest Nicholson v McAllister)
4. Scheme of Development
a. Covenants for the common benefit of all the plots (Re Dolphin’s Conveyance)
b. Common intention for all the vendees to benefit (Re Dolphin’s Conveyance)
c. Common interest in the enforcement of the covenants (Re Dolphin’s Conveyance)
Cannot use s62 LPA for covenants (Roake v Chadha)
Running of the Burden
Burden of covenants cannot run at law (Austerberry v Oldham Corp)
Burden of a restrictive covenant can run in equity under principle in Tulk v Mokhay:
Running of the Benefit
1. s56 – allows person to take the benefit despite not being named as a party to the
conveyance if (Re Ecclesiastical Commissioner’s Conveyance)
a. Must purport to be with C (Re Ecclesiastical Commissioner’s Conveyance; Beswick v
Beswick per Lord Upjohn)
b. C must be in existence at the time of the covenant (Re Ecclesiastical Commissioner’s
Conveyance)
2. Assignment
a. Must be in writing (s136 LPA)
b. Must be at the same time as the conveyance of the land (Re Union of London)
c. Must identify the land with sufficient clarity that it can be seen with reasonable
certainty on extrinsic evidence (Newton Abbot Co-operative v Williamson &
Treadgold)
3. Annexation
a. Covenant must ‘touch and concern’ the land (Smith & Snipes Hall Farm v River
Douglas CB)
i. Four tests of Lord Oliver in P&A Swift v Combined English Stores for
leasehold covenants are relevant:
1. Whether the covenant would cease to have any benefit if it did not
run?
2. Whether the covenant affects the nature, quality, mode of user, or
value of the land?
3. Covenant is not expressed to be personal
4. If the covenant is to pay a sum of money, if it is connected with
something to be done to, or in relation to, the land?
b. s78 LPA affects a statutory annexation to ‘each and every part of the land’
(Federated Homes v Mill Lodge Properties)
c. s78 can be excluded by a contrary intention (Crest Nicholson v McAllister CA
confirming Roake v Chadha)
d. Must identify the land to be benefited expressly or by necessary implication,
sufficient if the conveyance describes it in terms which enable it to be identified by
extrinsic evidence (Crest Nicholson v McAllister)
4. Scheme of Development
a. Covenants for the common benefit of all the plots (Re Dolphin’s Conveyance)
b. Common intention for all the vendees to benefit (Re Dolphin’s Conveyance)
c. Common interest in the enforcement of the covenants (Re Dolphin’s Conveyance)
Cannot use s62 LPA for covenants (Roake v Chadha)
Running of the Burden
Burden of covenants cannot run at law (Austerberry v Oldham Corp)
Burden of a restrictive covenant can run in equity under principle in Tulk v Mokhay:
