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8.1.3 Freehold and Restrictive Covenants Lecture – Hands on Examples

The following section will test your knowledge of freehold covenants in the context of land law – when does the burden or benefit of a covenant pass, are the rules different under common law and equity, and what remedies may be available to the individual who benefits from the covenant? After studying the detailed chapter on freehold covenants you should be able to identify the issues in these questions and apply the law correctly. The answers for this question will be at the very bottom of this page.

In order to identify a question relating to freehold covenants, you should look for some kind of promise between two land owners, either to do something or not to do something. Don’t get confused between easements, where a land owner may have a right to do something on someone else’s property – here you are looking for a promise in relation to their own property. The question below should allow you to grasp exactly what a question on covenants may look like.

Here is a basic, sensible approach to questions involving covenants. You may wish to follow this or use your own methods:

  • Establish what the covenant is, and whether it is a positive or negative obligation
  • Establish who the covenantee is, and who the covenantor is.
  • Who gets the benefit of the covenant, and who gets the burden? Identify and dominant and servient land
  • Consider the burden of the covenant – can it run at common law? (Remember this is highly unlikely)
  • Can the burden of the covenant run at equity as per Tulk v Moxhay – remember the four requirements
  • Consider the benefit of the covenant – can it run at common law?
  • If it cannot run at common law, can it run at equity? Consider annexation, assignment and building schemes
  • What are the remedies and are they enforceable?

This approach should cover all the issues and will allow you to determine whether or not a covenant is enforceable. The relevant tests, cases and statutory provisions will need to be utilised in order to get full marks.

Scenario

Anna has inherited a substantial amount of land from her family in 1970, and has sold a lot of it off with various conditions and promises made between her and the purchasers. She would like some advice on whether anybody can claim against her.

  1. Anna enjoys her peace and quiet. When she sold the land directly adjacent to her house to Lewis, he promised by covenant not to make noise past 9pm. Lewis then sold the land on to Rob. Unfortunately, Rob has been consistently making noise way past midnight and Anna is unhappy.

Is this covenant enforceable by Anna, and if so, what should she do?

  1. Anna then sold her piece of land that was adjacent to Rob’s to Sara in 2003. Sara holds the land as fee simple absolute in possession. Rob assumed that as Anna was now gone, he was not subject to the covenant to not make noise past 9pm, therefore he decided to start throwing parties every weekend. Sara is not happy.

Does Sara have any remedy against Rob?

  1. Anna owns a 100 acre piece of land in one corner. In the very far corner she sells 1 acre to Tyler. One condition of the sale is a covenant to not fly any drones or other aerial devices. Subsequently, Anna subdivides her 100 acre piece of land and sells it off in chunks. The conveyance states ‘the conveyance is drafted for the benefit of the whole of the dominant land’. The new owner of the land adjacent to Tyler’s is Bob. Tyler has now started flying his drones around and scaring Bob’s dog. Bob wants to know whether he can enforce this covenant.

Does Bob have any remedy against Tyler under equity as per the annexation rules? Assume the covenant is clearly drafted to run with the land. What if the covenant had been drafted as an annexation to each and every part of the land?

  1. Anna is the original covenantee, and therefore we do not need to consider whether the benefit of the covenant runs. However, as Lewis has sold the land on to Rob, we need to consider whether the burden of that covenant has run. At common law, the burden of a covenant does not run as per the privity of contract rules. However, the burden may run under equity as per the Tulk v Moxhay rules. These requirements seem to have been met: the covenant is negative as Rob will not have to pay anything to comply with the covenant; the covenant was made to benefit Anna’s land; it touch and concerns Anna’s land as there are adjacent therefore noise would affect her land; there is no reference to the express wording of the covenant, therefore it can be assumed that the covenant is intended to burden the subsequent owners as per S79(1) of the Law of Property Act 1925.

Therefore, the burden of the covenant runs with the land and Anna will be entitled to a remedy. Anna should seek an injunction as soon as possible as if she delays seeking a remedy is may be considered acquiescence.

  1. This is a question of whether the benefit of the covenant runs. Therefore, the common law test should first be applied. Firstly, it is clear the covenant touches and concerns the land, as it benefits Sara’s land, the quality of her land, and it is assumed that there is no express wording that would mean it was not intended to run. It can also be assumed on the facts that the covenantee held a legal estate in the land on the date of the covenant. Next, it is clear Sara derived her title from the original covenantee, Anna, and on the facts, she holds the land on a fee simple absolute in possession.  Finally, the covenant was made post-1926 therefore there is an assumption the benefit was meant to pass with the land as per S78(1) of the Law of Property Act 1925.

Therefore, the benefit of the covenant runs with the land and Sara is entitled to a remedy. As with Anna, she should make the injunction claim as soon as possible.

  1. The issue here is whether the subdivision of the dominant land will have affected the rights of Bob to enforce the covenant. The case of Russell v Archdale [1964] Ch 38 confirms that annexation to the whole land would not extend to subdivided and sold land. Therefore, Rob would not be able to enforce the covenant.

If the covenant had been drafted to annex each and every part of the land, the covenant would have been enforceable against Tyler.


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