Freehold Covenant notes

1. WHAT IS A COVENENT?

A) A promise expressly made, usually in a deed, between neighbouring freehold owners, the covenantor and covenantee. 

B) Equitable only, minimum requirement is signed writing (S53(1)(A))

C) The difference between a covenant and an easement

Real and Personal covenants 

a) Real- touches and concerns the land

b) Personal- personal benefit to the covenantee only 

P&A SWIFT INVESTMENTS V COMBINED ENGLISH STORES GROUP PLC

In the chains of indemnity the covenentor will have to get indemnity cover over each new buyer so if the covenant is breached they cant be sued. 

Successors in title to the original covenantee (the passing of the benefit)

a) Under common law, the benefit passes in two ways:

1. Express assignment on transfer of land

2. Automatically so long as:

i) The covenant touches and concerns the land of the covenantee;

ii) Original covenantee and successor in title have a legal estate in land; and 

iii) benefit of the covenant was intended to run with the land and be enforceable by successors.

Intention can be shown through express words. or deemed under s.78 LPA 1925

b)  Under equity, the benefit passes if the covenant touches and concerns the land and is expressly assigned or is annexed. Annexation is by express wording or deemed/statutory under s.78 LPA 1925. S78 Is the passing of the benefit. 

4.3 Successors in title to the original covenantor (the passing of the burden)

a) Not under common law- Austerberry V Corporation of Oldham

b) Mutual benefit and burden…