Under the common law, covenants must contact and concern land to pass the benefits.

As per Lord
Oliver in Swift Investment v Combined English Store, the satisfied facts where the covenants must
benefit the owner of the land in term of value, quality, and mode of use of the land which must not
be personal. All the above covenants have provided benefits to the land. For covenant (a), if the
shop is used for commercial purposes, it will benefit the Shop X as the crowd may increase, the
crowd may grow (b), if the shop maintains a pleasing appearance, it can attract some tourists to stop
by to take photographs, thus creating additional business opportunities. While (c) supports shop X
by requiring just half of the fees and allowing them to use the drain.

Apart from that, the covenantee's legal estate should be allow in the Dominant Tenement land.
Refers to the fact, Shop X owned by Jacob (Webb v Russell) and in 2010 Jacob sold Shop X to Kelvin
(Westhoughton UDC v Wigan Coal and Iron). Both parties must have the intention for the benefits to
proceed under common law which presumed under s78 Law of Property Act (LPA) 1925. These rules
extend to both negative and positive covenants and we believe that all three covenant’s benefit are
allowed under the common law.

For the covenants’ benefits to pass in Equity, it must be contacting and concerning the land and the
claimant must have equitable or legal estate which applies to both negative and positive covenants.
Since the evidence did not indicate that the covenants were particularly stated by Jacob to Kevin
therefore annexation will be the only option for the benefit to be pass. The benefits can be tied to
the land through annexation which it will pass automatically upon the land’s transfer, and the
successor of land not necessarily needed to about it as in Rogers v Hosegood.

The express annexation will be done by the parties in documents with simply words which indicating
intention of the parties that the covenants is for the benefit of the land and should be retained with
the land. From the submitted fact showed that covenants for the benefit of neighboring land and
retained land were inserted by Jacob(Re Ballard’s Conveyance) as part of the transfer of ownership
of Shop Y to Sandra, but it is uncertain whether that the covenants were communicated orally or in
written form. By stating all the benefits clearly in written form, it will be pass with express
annexation.

Besides, the benefits also can be annexed to the land under statue where s78 LPA applies. As per
Federated Homes Ltd v Mill Lodge Properties Ltd, Brightman LJ interpreted s78 LPA where the
benefits of covenants that touch and concern the land are automatically annexed to the land. In
Crest Nicholson Residential Ltd v Mc Alisster, the requirements for automatic statutory annexation
were listed down where the covenants must benefit the land and the land must be precisely
identifiable. According to the facts, all of the covenants stated above are benefit to Shop X.

As a result, we may conclude that under the Common Law and Equity, all the benefits can be
transferred from Jacob to Kevin, and the benefits will be transfer in the mode of express annexation
if the benefits were written in the document upon the transfer of Shop Y from Jacob to Sandra. From
the other way, the benefits also can be passed through the statutory annexation where the
automatic statutory presumption under s78 LPA do not require the written document for the
transfer to be done.
Running of Burdens

Covenant (a) is a negative covenant as it restricted the land of Servient Tenement from being used
for anything other than as a shop. The burden of land can only run in equity if it fulfilled the rule as
per Tulk v Moxhay. Our facts meet the requirements where covenant (a) is a restrictive covenant, as
it touch and concern the land and benefits the Dominant Tenement as stated above. However, the
intention of the burden run was not stated in our fact, but it was presumed by s79 LPA. As a result,
the restriction of the land which only can be use as a shop will pass to Andy and it can be implement
by Kelvin.

In (Austerberry v Oldham Corp), under common law the burden of the covenant between land’s
freeholders will not retained with the land. While as per Rhone v Stephens, although benefits are
allowed to attach to third parties, but the burden should not bound. However, the general rule of
common law has the exceptions which allow the burdens of positive covenant to bind third parties.
The exceptions included only the easement of fencing, chain of indemnity clause and doctrine of
mutual benefit mutual burden. According to our fact, covenant (b) is a positive covenant that
required the owner of Shop Y to maintain the exterior decorative. This does not include under the
common law exception since it received no benefit from the Dominant Tenement land and the
fence's maintenance was not mentioned. The burden of the covenant may only be enforced if the
outside works as a fence which fact is silent. Therefore, it can be argued that under common law,
Andy was not bound by the burden to maintain the exterior of Shop Y decorative.

Based on covenant (c), Sandra was required to pay half of the private drains maintenance cost which
connecting the Shop Y’s private drains to main sewer. If the doctrine of mutual benefit and mutual
responsibility applies, the burden would be transferred to Andy. As in Tido v Waddell, the doctrine
clarified that if a person benefits from another person’s land with a burden, the third parties shall
bear the burden if they continue enjoyed the benefits. Although the fact does not state that Sandra
used the drain, but by agreeing to pay maintenance, it can be assumed that she accepted the benefit
that comes with the burden to pay half of the maintenance cost (Halsall v Brizell). The preconditions
for the application of this doctrine were set out by Peter Gibson LJ in Thamesmead Town Ltd v
Allotey, where the benefit and burden must be conferred in the same direction and the covenentor's
successor must have the option to enjoy the benefit and avoiding the burden. Based on the fact, the
use of drain comes with the benefit and burden, thus the doctrine is applicable, and Andy has the
choices to choose whether to use it. However, Andy chooses not to use the drain and build a new
one. Therefore, the burden of previous drain did not bind to Andy as he did not use the drain
(Goodman v Elwood). As a result, Kevin is unable to proceed the covenant (c) because it does not
bind Andy.