Freehold Covenants

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  • Created by: Edward
  • Created on: 29-02-16 12:15
Beswick v Beswick (1968)
To be within ambit of s 56, a person must show that the cov’t was intended to benefit him, even though he was NOT a party to the deed
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Kelsey v Dodd (1881)
A ref to successors in title is not enough for purposes of s 56 as they are NOT ascertainable at the time the cov’t is created
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Gafford v Graham (1998)
The benefit of pos and neg covenants can pass at common law, but the equitable rules apply to neg covenants
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Austerberry v Oldham Corpn (1885)
The burden of a covt (regardless whether it is pos or neg in nature) cannot run with the land; although, the benefit of a pos freehold covt can run
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Rhone v Stephens (1994)
The burden of a pos covt cannot run
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P&A Swift (1989)
Benefit can pass at common law subj to 3 conditions: touch and concern; covenantee must have at time legal estate in benefitted land; intention for covt to run with land
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Rogers v Hosegood (1900)
No contrary intention should be expressed in the conveyance to the effect that the covt was not intended to run with the land
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Smith & Snipes (1949)
Touch and concern reqt must affect land as regards mode of occupation or directly affect the value of the land; also, a tenant acquired the benefit of a covt made with a predecessor in title who was a freeholder
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Tulk v Moxhay (1848)
Although expressed in pos way, it was a neg covt
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Haywood v Brunswick (1888)
Rule = if the covt requires the expenditure of money in its performance (e.g. to maintain a roof) then it will be pos
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Shepherd Homes v Sandham (No 2) (1971)
A covt which has both pos and neg elements can be severed so that the neg element will be binding on the land
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Kelly v Barret (1924)
Physical proximity = a crucial factor in showing that the dom land is benefitted
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Newton Abbot v Williamson (1952)
It has to be something more than personal convenience and adv
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Re Ballards Conveyance (1937)
The dom tenement must be clearly identified
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Robins v Berkeley Homes (1996)
If a covt is annexed expressly or impliedly to the whole and each and every part of the dom land, it is enforceable by the succesors in title to any part which actually benefits from it
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J Sainsbury v Enfield (1989)
Rule = the burden of the covt is unenforceable in equity unless the benefit if the covt has also run in equity
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Tophams v Earl of Sefton (1967)
Lord Upjohn: s 79 does no more than render it unnec in the descriptyion of the parties to the conveyance to add after the respondent’s name: his executors, administrators and assigns
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Morrels of Oxford v Oxford United FC (2001)
CA: a contrary intention existed which prevented such reliance – drafting of cov’ts by purchaser were expressly made to bind future tenants, whereas the vendor’s cov’ts were not
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Formby v Barker (1903)
A successor to a part of land must show that the benefit is annexed to that part
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Renals v Cowlishaw (1878)
It is crucial that the benefitted land be referred to because, without this identification, there can be no anexxn
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Rogers v Hosegood (1900)
Once the benefit is annexed it was with the land automatically- even if the successor to the land does not know it exists when he takes the conveyance
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Seymour Road (2010)
Annex cannot be implied merely from the surrounding circums
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Marquess of Zetland (1939)
It is better practise to annex the cov’t to the whole and to each and every part of the dom tenement
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Crest Nicholson v McAllister (2004)
For annex to occur under s 78, the covt must identify the land to be benefited either explicitly or by nec implication
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Roake v Chadhra (1984)
S 78 does not apply where there is express contrary intention
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Federated Homes v Mill Lodge (19890)
The purpose of s 78 is to effect annex to the land as a whole and to each and every part
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Miles v Easter (1933)
The assignment must be coupled with a transfer of the land and the conveyance and the assignment must be simultaneous
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Elliston v Reacher (1908)
Trad’l principles for scheme of devt: common vendor; common vendor must have laid out estate in defined plots; restrictions were intended by the common vendor to be and were for the benefit of all lots intended to be sold (see Re Jeff’s Transfer (196
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Williams v Kiley (2003)
In more recent times, there has been some retreat from formal reqts in Elliston
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Re Dolphin’s Conveyance (1970)
A scheme was held to exist even though there was NO common vendor
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Baxter v Four Oaks (1965)
A scheme was held to exist even though the common vendor had not laid out the estate in lots prior to the sale
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Emile Elias v Pine Groves (1993)
It is nec that the existence of the scheme must be brought to the knowledge of the prospective purchasers
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Rhone v Stephens (1994)
Lord Templeman: equity has no power to enforce pos covts against succ’s in title of land; to enforce such a pos covt would be to enforce a personal oblign against a person who has not covenanted
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Halsall v Brizzel (1957)
Rule = if a person wishes to take adv of a service or facility, he must comply with any consequential oblign that goes with it
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Rhone v Stephens (1994)
Re rule in Halsall – Lord Templeman: the benefit obtained must be relevant to the impositions of the burden
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Shiloh Spinners v Harding (1973)
Rule in Halsall makes otherwise unenforceable pos covts enforceable against a new purchaser
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Davis v Jones (2009)
The benefit and burden must be conferred in or by the same transaction – a mere understanding will not suffice as there has to be a legal obliogn imposed
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Thamesmead Town (1998)
The tenants were free to choose whether to use the rights or not, and if they chose not to, they did not have to contribute to the upkeep (see also Allied London, Tito and Halsall)
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Smith Brothers Farms v Canwell Estate (2012)
The rentcharge owner would be allowed to enter the land so as to enforce the rentcharge and ensure that the pos covt runs with the burdened land
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Texaco Antilles v Kernochan (1973)
A neg covt is permanently discharged where the dom and servient tenements come into common ownership
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Re Bradley Clare (1987)
Grounds for discharge by UT: the restriction is deemed obsolete by virtue of changes to the character of the prop or neighbourhood or other material circums
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Re Truman (1956)
A covt becomes obsolete when its original purpose can no longer be served
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Gilbert v Spoor (1983)
Grounds for discharge by UT: the continued existence of the covt would impede some reasonable user (relating to long-term use) of the land for public or priv purposes, and either the covt confers no practical benefit of substantial value or compensat
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Re Coleman (2012)
Grounds for discharge by UT: Parties expressly agreeing to discharge or modify the benefit of the restriction must be of full age and capacity and NOT the victim of any misrepn
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Moody v Vercan (1991)
Grounds for discharge by UT: the proposed discharge or modification will not injure the persons (i.e. objectors) entitled to the benefit of the restriction
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Other cards in this set

Card 2

Front

A ref to successors in title is not enough for purposes of s 56 as they are NOT ascertainable at the time the cov’t is created

Back

Kelsey v Dodd (1881)

Card 3

Front

The benefit of pos and neg covenants can pass at common law, but the equitable rules apply to neg covenants

Back

Preview of the back of card 3

Card 4

Front

The burden of a covt (regardless whether it is pos or neg in nature) cannot run with the land; although, the benefit of a pos freehold covt can run

Back

Preview of the back of card 4

Card 5

Front

The burden of a pos covt cannot run

Back

Preview of the back of card 5
View more cards

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