covenants

  • Created by: AretiPro
  • Created on: 01-05-18 17:12
covenants
form of promise
1 of 18
types of covenants
restrictive (negative), positive
2 of 18
enforcement
need to identify the benefit or burden
3 of 18
enforcement issues
original covenantee can always enforce the covenant against the ORIGINAL covenantor as a matter of contract
4 of 18
successors in title
legal assignment of the benefit section 136 LPA 1925 - assignment in writing, written notice given to original covenantor, this will not be done in each situation = rely on equity, benefit is assigned to the NEXT PERSON who BUYS LAND in EQUITY
5 of 18
common law v equity
common law = right, equity = more flexible
6 of 18
common law - benefit
BOTH restrictive & positive can run if the covenant touches and concerns the land of the original covenantee P&A Swift Investments, at the time the covenant was made it was intended to benefit the covenantees land section 78 LPA 1925
7 of 18
common law - benefit
at the time the covenant was made the covenantee held a legal estate in the BENEFITED land, the claim must DERIVE their title from of user the ORIGINAL covenantee but does NOT need to hold the same legal estate as the original covenantee - Smith 1949
8 of 18
common law - the burden
burden DOES NOT run at common law - Austerberry, Rhone, effect; covenant can be enforced at common law only where a remedy is sought against the ORIGINAL covenantor, claimant must consider rules in equity
9 of 18
rule in equity
he seeks to enforce the covenant against a successor in title to the original covenantor or he requires an equitable remedy - injunction
10 of 18
equity - the burden
Tulk v Moxhay - covenant is NEGATIVE, at the date of the covenant the covenantee must have owned benefited land - Allen, the covenant 'touches and concerns the land of the covenantee and sufficiently proximate
11 of 18
equity - the burden continued
parties must have intended the burden to run section 79 LPA 1925, rules for registration or notice are satisfied
12 of 18
equity - the benefit
benefit runs to allow claimant to obtain remedy - covenant touched and concerns the land and the benefit was annexed to the land of covenantee or express assignment or building schemes
13 of 18
statutory annexation
section 78 LPA 1925 - covenant relating to any land shall be deemed to be made with the covenantee + successors in title + persons deriving title - shall have effects as if successors and other person were expressed - Federated Homes
14 of 18
statutory annexation continued
condition precedent of section 78 is satisfied Roake
15 of 18
positive covenants
indirect methods of ensuring it can be enforced the OWNER of the BURDENED land - mutual benefit & burden - Halsall, a chain of indemnity covenants
16 of 18
discharge/modification of covenants
burdened & benefited land in the same ownership - section 84 LPA 1925 - obsolete due to changes in the character of property, impedes a reasonable user + provides no practical benefit to any person or against public policy, agree/implied discharge
17 of 18
effect of discharge
causes no loss to the person entitled to the benefit
18 of 18

Other cards in this set

Card 2

Front

types of covenants

Back

restrictive (negative), positive

Card 3

Front

enforcement

Back

Preview of the front of card 3

Card 4

Front

enforcement issues

Back

Preview of the front of card 4

Card 5

Front

successors in title

Back

Preview of the front of card 5
View more cards

Comments

No comments have yet been made

Similar Law resources:

See all Law resources »See all covenants resources »