Land Law I

Module Code: LLBM2009

By: Aishath Riyasa
 Topic 8:
Covenants  Freehold and Restrictive covenants
  Freehold covenants are promises (between the
covenantor and covenantee) made by deed to do
or not to do certain things on freehold land.
Freehold and
Restrictive  The covenantor: the landowner making the
covenants promise i.e. their land is the burdened land.

 The covenantee : the landowner to whom the

promise is made i.e. the person who benefits
from the covenant.
 Covenants
between
Positive and freeholders
negative
freehold
covenants
Positive Negative
  Positive covenants require the owner of the
burdened land to take some action on his own
Positive property or property related to it, usually
covenants requiring the expenditure of money.

 Example: Covenant to pay for the upkeep of a

private road.
  A type of covenant which restricts the use of
land
Negative
[Restrictive]
covenants  Negative (or ‘restrictive’) covenants require the
owner of the burdened land to refrain from some
activity on his own land.

 Example: Covenant against carrying on any

trade or business on the land.
  Covenants are promises by one person to
another contained in a deed to do, or, more
Covenants as usually, not to do, something on their own or
contracts related land.

 The covenant is made between the covenantor

and the covenantee and is enforceable like any
other contractual obligation between these
original parties.
  As a covenant is a contract a covenantee may
sue a covenantor at law or equity
Enforcing
covenant  However, because the benefit and the burdens of
certain types of covenant can be passed to
subsequent owners of both the original
covenantor's and original covenantee's land, a
number of different situations must be
identified.
  Covenants comprise both a benefit (the right to
sue) and a burden (the obligation to perform).

 Both the benefit and burden may be ‘attached’ to

Covenants as the benefited and burdened land .
interests in land
 They pass to later purchasers or transferees of it.

 Before a covenant can be enforced in practice, the

claimant must prove they have the benefit and the
defendant must be fixed with the burden.
  Covenants are clearly regarded as proprietary
interests in land, albeit equitable in nature.
Covenants as
interests in
 Performance of the covenant on the burdened
land land may bind future transferees/purchasers of
the land if certain conditions are fulfilled.

 The covenantee has the benefit of the covenant

and can sue for its performance.
 The relevance  If a person sues on a covenant at law, he will be
of ‘law’ and claiming that the defendant is subject to the
burden of the covenant under the common law
‘equity’ and the and should pay damages.
enforcement of
covenants  If a person sues on a covenant in equity, he will
be claiming that the defendant is subject to the
burden of the covenant under the rules of equity
and susceptible to the discretionary equitable
remedies of injunction and specific performance
and to rules of registration.
 If the original covenantor has parted
with the land that was subject to the If the covenantor and covenantee are
covenant: he remains liable on all still in possession of their respective
Principle 1: the covenants to whomsoever has the
benefit of them, although damages
land : all covenants are enforceable
and the covenantee may obtain
enforcement only are available because the
covenantor has no land on which to
damages, an injunction or specific
performance.
between the perform the covenant.

original
covenantor and If the original covenantee has parted
with the land that had the benefit of
the original the covenant: he may still be able to
enforce a covenant against
covenantee whomsoever has the burden of it.
  In equity, the burden of restrictive covenants only may pass, providing:
Principle 2:  the covenant is restrictive in nature;
enforcement  the covenant touches and concerns the land (except possibly where the
Landlord and Tenant (Covenants) Act 1995 applies to a leasehold covenant
against not enforceable under ‘leasehold rules’:

successors to the  at the date of the covenant, the covenant actually did confer a benefit on
land owned by the original covenantee;
original  the burden of the restrictive covenant must have been intended to have run
with the land of the original covenantor:
covenantor  in registered land, the covenant must be registered as a minor interest
(passing the against the burdened land to bind a purchaser for value who becomes
registered proprietor;
burden)  in unregistered land, the covenant must be registered as a Class D(ii) land
charge to bind a purchaser of a legal estate who gives money or money’s
worth;
 the claimant is granted a remedy by virtue of the court’s discretion
 Principle 3:  The benefit of a both a positive and restrictive covenant
may be passed at law or in equity.
enforcement by
 If it is necessary to consider passing the benefit of a
successors to covenant at law (for example, the original covenantor
the original may be the defendant), then:
covenantee  the covenant must ‘touch and concern’ the land of the
original covenantee;
(passing the  the claimant must have a legal estate in the land,
benefit) although not necessarily the same legal estate as the
original covenantee.
 the benefit of the covenant must have been annexed to a
legal estate in the land either expressly or by implication:
  the covenant must ‘touch and concern’ the land of the original covenantee;
 the claimant must have a legal or equitable estate in the land of the original
covenantee, although not necessarily the same estate as the original covenantee.
For restrictive covenants only, this may include an ‘occupier’ for example, a
squatter: s 78 of the LPA 1925;

In order to pass  •he benefit of the covenant must have been transmitted to the claimant in one of
three ways:
the benefit of a  (a) by annexation, express or implied. The benefit of a covenant can be expressly
annexed to the land in equity in exactly the same way as in law, that is, by express
covenant in words or by statute under s 78 of the LPA 1925;
 (b) by assignment: express or implied. Following the general rule that the benefit
equity, then: of a contract may be assigned to another, the original covenantee may expressly
assign the benefit of a covenant at the same time as he transfers the land. For
future sales of the land, an assignment of the benefit of the covenant may be
implied by s 62 of the LPA 1925, subject to criticism in Kumar v Dunning (1989);
 (c) a scheme of development (building scheme). This allows the benefit of later
purchasers’ covenants to be passed to the land already sold by a common vendor
(that is, to previous purchasers), notwithstanding that this should not be possible
because the original covenantee (the common vendor) has already parted with the
land
 Devices that
may allow the  These include:
passing of the  (a) a chain of covenants;
burdens of  (b) the artificial long lease;
positive  (c) mutual benefit and burden;
covenants in
 (d) reinterpreting s 79 of the LPA 1925;
practice
 (e) restrictions on the title of registered land
  Facts
 A conveyed to some trustees a piece of land as part of the site of a road
intended to be made and maintained by the trustees.

Austerberry v  In the conveyance, there was a covenant that the trustees would make
the road, keep it in good repair and allow access to it subject to tolls.
Corporation of  The piece of land conveyed was bounded on both sides by lands
belonging to A.
Oldham(1995)  The trustees made the road, which afforded the necessary access to A’s
adjoining lands.
 A then sold his adjoining lands to the plaintiff and the trustees sold the
road to the defendants. Both parties had taken with notice the covenant
of repair.
 The defendants declared the road a street which under s. 150 Public
Health Act 1875 rendered it repairable by the inhabitants at large. The
plaintiff resisted this declaration alleging that the road was and had
always been a road repairable by its owners.
  Issues
Austerberry v  (1) Could the plaintiff enforce the covenant
against the defendants?
Corporation of
Oldham(1995)
 (2) Was the road dedicated to the public and
thus, repairable by the inhabitants at large?
  Decision/Outcome
 (1) The plaintiff could not enforce the covenant against the
defendants because, although equity could prevent or punish the
Austerberry v breach of negative covenants which restricted the user of freehold
Corporation of land, it could not compel an owner to comply with positive
covenants entered into by his predecessors in title.
Oldham(1995)  (2) An individual cannot, without a legislative authority, dedicate a
road to the public if he charges tolls for the user.
 (3) The mere fact that a number of persons grouped in a company
for making and maintaining the road, erected bars and charged
tolls, did not make the road a “turnpike road” which as such was
dedicated to the public.
 Thus, despite the fact that the covenant was unenforceable, the
road was not repairable by the public at large within the meaning
of s. 150 Public Health Act 1875, but by its owners
  Facts
 The claimant, Tulk, owned several properties in Leicester
Square, London, and sold one such property to another,
Tulk v Moxhay making the purchaser promise to not build on the
property so as to help keep Leicester Square ‘uncovered
[1848] with buildings’ and creating an equitable covenant.
 The purchaser subsequently sold the land and it
underwent multiple transactions, and was eventually
purchased by the defendant, Moxhay.
 Whilst Moxhay was aware of the covenant attached to
the land at the time of the transaction, he claimed it was
unenforceable as he had not been a party to the original
transaction in which the covenant had been made.
  Issue
 Whether an equitable covenant limiting the use of a property could
‘run with the land’ and bind a future owner of the property.

 Decision/Outcome
Tulk v Moxhay  The High Court, consisting of Lord Cottenham, found for Tulk, and
[1848] passed an injunction to prevent Moxhay from building on the land.
 The covenant had been intended to run with the land at the time it was
made, and all subsequent purchasers had been informed of its
existence.
 Moreover, as a covenant amounts to a contract between a vendor and
vendee, it is enforceable against a purchaser for value with either
constructive or actual notice.
 As Moxhay had actual notice of the covenant, he was obligated to
abide by it. Notably, the relevance of this decision decreased with the
introduction of the 1925 Land Registration Act which made such
covenants a registrable interest
  Dixon M, Chapter 8: ‘Freehold Covenants’
 Mackenzie J & Phillips M, Chapter 26
‘Covenants relating to freehold land’
Reading  Austerberry v Corporation of Oldham(1995)
 Tulk v Moxhay [1848]
Thank you