An Introduction to Freehold Covenants

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  • Created by: Steph130
  • Created on: 20-03-22 15:54
Hierarchy of estates and interests in and over land
Freehold-Leasehold- Easements, profits, and covenants-Licences
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What is a “freehold covenant”?
A promise from one freehold owner of land to another freehold owner of land either to do or to refrain from doing something on the land. They raise issues related to contractual rights and
property rights
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covenantor
The landowner making the promise and they carry
the burden of the covenant
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covenantee
The landowner who benefits from the covenant
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Who can enforce a freehold covenant?
Contract law tells us that the covenants are usually only enforceable between the original covenanting parties, although there are exceptions
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Who can enforce a freehold covenant? exceptions
s.1(1)-(3) Contracts (Rights of Third Parties) Act 1999 might allow a successor in title to the original covenantor to enforce the covenants against the original covenantee
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Who can enforce a freehold covenant? exceptions 2
s.1(1)-(3) Contracts (Rights of Third Parties) Act 1999 only apply to covenants made after 11 May 2000 and these statutory provisions only apply to the benefit of a covenant
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original covenantee
the person who originally benefited from the covenant who can enforce the covenant against the original covenantor
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original covenantee 2
If the original covenantee transfers their freehold estate to a new owner, it needs to be asked if the benefit of the covenant “runs with the land” (i.e. can the new owner enforce the covenant against the original covenantor?)
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original covenantor
If the original covenantor transfer their freehold estate to a new owner,it needs to asked if the burden of the covenant runs with the land
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original covenantor 2
can the owner of the original covenantee’s land enforce the covenant against whoever is the owner of the original
covenantor’s land?
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The running of the benefit of a freehold covenant
– the common law rules
There are four pre-conditions that must be satisfied for the benefit of a covenant to
run at common law
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The running of the benefit of a freehold covenant
– the common law rules a
The covenant must touch and concern the benefited land
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The running of the benefit of a freehold covenant
– the common law rules b
When the covenant was made, the original covenanting parties must have intended that the benefit would run with the benefited land
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The running of the benefit of a freehold covenant
– the common law rules c
When the covenant was made, the covenantee must have owned a legal estate in the benefited land
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The running of the benefit of a freehold covenant
– the common law rules d
The person seeking to enforce the benefit of the covenant must hold a legal estate in the benefited land and be able to derive her title from the original covenantee
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The running of the benefit of a freehold covenant
– the common law rules 2
A covenant touches and concerns the benefited land when it is for the benefit of the land rather than only for the personal benefit of the original covenantee
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The running of the benefit of a freehold covenant
– the common law rules 2 a
We can ask if the covenant:Only benefits the person who owns the legal estate (i.e. the covenant would be worthless to a person who does not own that specific land)
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The running of the benefit of a freehold covenant
– the common law rules 2 b
Enhances or improves the way that the benefited land is used or enhances the
value of that land
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The running of the benefit of a freehold covenant
– the common law rules 2 c
Is not expressed to be personal.
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pre-conditions that must be satisfied for the benefit of a covenant to run at common law
1. The covenant must touch and concern the benefited land;
2. When the covenant was made, the original covenanting parties must have intended that the benefit would run with the benefited land;
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pre-conditions that must be satisfied for the benefit of a covenant to run at common law 2
3. When the covenant was made, the covenantee must have owned a legal estate in
the benefited land
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pre-conditions that must be satisfied for the benefit of a covenant to run at common law 3
4. The person seeking to enforce the benefit of the covenant must hold a legal estate in the benefited land and be able to derive her title from the original covenantee.
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Smith & Snipes Hall Farm v River Douglas Catchment Board [1949] 2
KB 500
When the covenant was made covenantee must have owned legal estate in the land to be benefited. The person seeking to enforce the
benefit of the covenant must hold legal estate in that land and derive her title from original covenantee
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Other cards in this set

Card 2

Front

What is a “freehold covenant”?

Back

A promise from one freehold owner of land to another freehold owner of land either to do or to refrain from doing something on the land. They raise issues related to contractual rights and
property rights

Card 3

Front

covenantor

Back

Preview of the front of card 3

Card 4

Front

covenantee

Back

Preview of the front of card 4

Card 5

Front

Who can enforce a freehold covenant?

Back

Preview of the front of card 5
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