The equitable rules for the running of freehold covenants

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  • Created by: Steph130
  • Created on: 20-03-22 16:32
The running of the benefit of a freehold covenant
– the equitable rules a
1. The covenant touches and concerns the benefited land;
2. The original covenanting parties intended that the benefit of the covenant would run with the benefited land
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The running of the benefit of a freehold covenant
– the equitable rules b
3. When the covenant was made, the covenantee owned a legal or equitable estate in the land to be benefited
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The running of the benefit of a freehold covenant
– the equitable rules c
4. The person seeking to enforce the benefit of the covenant owns a legal or equitable estate in the benefited land.
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Questions to ask to establish the original covenanting parties intended that the benefit of
the covenant would run with the benefited land
a) The benefit of the covenant was annexed to the land in question; b) The benefit of the covenant was assigned to the successor in title c) The land involved was part of a “building scheme”
rules for annexation are the same as common law
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assignment
the transfer of the benefit of a covenant to another person. takes place at the time of the transfer of the freehold estate from one owner to
another. can be either express or implied from the circumstances of the transaction
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assignment: supporting case
Bevan (2020)
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Things needed for an effective assignment in equity
1. covenant must be for the benefit of the land conveyed and not the covenantee personally;
2. Land benefiting from the covenant must be easily identifiable/“ascertainable”
3. Assignment must happen at the same time as the transfer of freehold estate
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Things needed for an effective assignment in equity: Supporting case
Miles v Easter [1933]
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building scheme
the freehold owners can enforce the benefit of restrictive freehold covenants against each other
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a building scheme will have come into existence if:
1. The scheme takes place on a defined area
2. The extent of that area is known to the prospective purchasers
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a building scheme will have come into existence if:
3The new freehold owners acquired their titles from a common owner
4. Each property bears the burdens of the covenants and the covenants are intended to be mutually enforceable;
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a building scheme will have come into existence if:
5. The original common owner is bound by the covenants and is obliged to obtain the same
covenants from each new freehold owner
6. The covenants bind each purchaser of a plot that is part of the scheme
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building scheme: supporting case
Birdlip v Hunter [2016] EWCA Civ 603, [2017] 1 P&CR 1
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The burden of a freehold covenant can run in equity if five conditions have been met
1. The covenant must be restrictive or negative in nature 2. The covenant must touch and concern the benefited land 3. The land benefiting from the covenant must be clearly identifiable
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The burden of a freehold covenant can run in equity if five conditions have been met
4. It must have been intended that the burden of the covenant would run with the
burdened land 5. If the burdened land is registered land, the burden of the covenant must
been recorded on the register of title for the burdened land at the Land Registery
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Is a covenant negative in nature?
Establishing if a covenant is negative in nature requires a comparison of “positive” covenants and “restrictive” covenants
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positive covenant
requires a landowner to do something,
usually involving the expenditure of money
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restrictive covenant
(i.e. a covenant that is negative in nature) restricts what a landowner can do with their land
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Establishing the “nature” of a freehold covenant
This is a crucial step – the burden of a freehold covenant can only run with the burdened land if the covenant is a restrictive covenant
See Tulk v Moxhay (1842) 2 Ph 774; Rhone v Stephens [1994] 2 AC 310
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London County Council v Allen [1914] 3 KB 642
The land benefiting from the covenant must be clearly identifiable and the original covenantee must have owned that land at the time that the covenant was made
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covenants entered into since 1925
s.79(1) Law of Property Act 1925 creates
a presumption that, in the absence of express wording to the contrary, the original parties to a freehold covenant must have intended that the burden of the covenant would run with the burdened land
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Intention
It must have been intended that the burden of the covenant would run with the burdened land
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covenants entered into since 1925
Express wording to the contrary might be present if the original covenanting parties stated (for example), in the deed creating the covenant, that the covenant was only ever intended to be a personal covenant between them
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registered land
If the burdened land is registered land but the burden of the covenant has not been noted on the register entry for that land then the burden will
not run with the land to a successor in title (s.29(1)(2) & s.32 Land Registration Act 02)
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Other cards in this set

Card 2

Front

The running of the benefit of a freehold covenant
– the equitable rules b

Back

3. When the covenant was made, the covenantee owned a legal or equitable estate in the land to be benefited

Card 3

Front

The running of the benefit of a freehold covenant
– the equitable rules c

Back

Preview of the front of card 3

Card 4

Front

Questions to ask to establish the original covenanting parties intended that the benefit of
the covenant would run with the benefited land

Back

Preview of the front of card 4

Card 5

Front

assignment

Back

Preview of the front of card 5
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