English Land Law Freehold Covenants – Part I

Dixon he organizes it differently and I just think sometimes about Dixon it’s very very good on some areas but sometimes images reorganize things just for the sake of either just and its bet he takes characteristics of the interest by doing different like it seems kind of but there were level of the diagram that you’ll see that this becomes a bit repetitive for them I’d explain why I’ve done it this way I thought I’ve been assuming anyway so my point is that when you’re reading the chapter in the book the organization is going to be or like the organization of the material is going to be slightly different the contents of Florida’s same so don’t worry about anyway so there are three whole comments now a covenant I mean I mentioned these children religion easements and easements of rights-of-way over other people’s lands and one of the things that you might remember that essence is that they’re generally negative like they’re very very reasons that you can get your name to do something and that’s almost carried across in the case of freehold covenants it’s more or less the same but the thing about it is that the other team would easements it’s also quite difficult to get somebody to refrain from doing something on their lands because with the needs meant what it is is that somebody is going to write to MIT and move over your land but generally not exclusively so it’s kind of more like a right of access covenants are when for example you might want to preserve your view and you want to make sure that the owner of the pleasant land in front of you isn’t going to build it’s that sort of scenario and obviously the area’s fraught with difficulty you can help you enforce that you might get the original owner to sign a contract deals with so I mean I’ll be talking to you in a bit more detail about this but every the idea of a positive for Old Covenant is that you’re getting somebody to and the idea with negative or actually restrictive – so that’s like I mean but you know that sort of scenario so you can so obviously there has to be some prescription so then that means that there has to be a purpose and actually as I’ve been talking this is the scary thing about agent Randall as I’ve been talking I just suddenly have realized why Dickson has organized this a bit differently but all will become clear I still think that my network is better but so I thought you’ve got a benefit and a burden

actually sorry just they’re also more commonly known the restrictive covenants so positive comments of Lord you’ve got benefits are very restrictive relational covenants the same thing I haven’t told this for a few years I did let’s do a bit breathing on it over the last few days and I have some kind of breaking up a little arising under God like how can you have an active interest which is enforceable at law but it’s because there’s a contract and also we hold continents are between owners of legal interests no the thing that I’m going to also just put in here but as I say this will hear positive comments at law you can have the benefits you can’t have positive equity and it’s when I say you can have a benefits sorry if it’s the benefit can run all right because the thing about the Covenant like in the example that I gave it’s all very well to get the present homes that are in terms of you to promise you the thing I’m interference but what if they are sign on there itself and once after you’ve moved in can you find their successes in tiger you know it’s all about that that sort of idea as you can imagine a positive covenant like which is an obligation to get you to spend money in equity the burden control then as well like negative three holds covenants would be requiring the person maybe to refrain from doing something actually spending money so towards benefits well you don’t have these even really mentioned whitewater categorizing it this way you know so he’s sort of organized differently he’s got the Pampas but anyway it’s just you might be like the way I do it so that’s absolutely fine but I kind of like to take it you know bit by bit so that you can take off now and there’s time I want to do so a confidence basically first of all it’s a contract between two people so you’ve got somebody who suffers two continents and somebody who accumulates the benefits okay so as I said again anybody example of you know getting your neighbor to promise to you or to contract with you not build in their land and you’re going to one person who benefits to the person who suffers the disadvantage and then obviously it only becomes problematic when does a conveyance to see whether the burden to see who consumed in the nine of conveyances so it operates a bit like this it’s not to make sure that you cannot see there so actually can I okay so you’ve got the government team gets the benefits and I put the Pharos facing in this

direction because the idea is that being is giving a promise okay so be them the person who bears the burden so in my example of a person who wouldn’t be able to build up their hands so they have a restriction but Underland is the continent or and that’s all very well if the promise is just between the two but obviously land has to have us okay invade so when I talk about successes and title it would be people on this chain right and the way in which it would work as well is that you see the if the benefit runs to see like there’s a conveyance from here and the ownership stays in these hands then there’s generally no problem if the benefit can run but here immediately you see a problem that if the conveyance goes the opposite way that a doesn’t sell on land but these cells on the language too deep and the burden isn’t running you see that’s where that problematic so thank you can have a conveyance in which you need to inquire whether the benefit is going to run and find successor some title but you also have the separate issue of the burden running and because of the logistic and developed by facial the rules that have emerged to break it down and I think you know method into a diagram until now and just one more thing that would be and an example of a positive government would be a covenant to erect and maintain classes so directly maintain fences obviously it’s going to require that you expend money so the low temp not to be very sympathetic towards those at towards enforcing those okay now so the first thing is that M freehold covenants they’re legally binding between freeholders privity of contract exists between the original parties so as between because you know the principles of freedom of contract even enter into a contract as I said the problem is that when you’re trying to enforce whatever it is against successes in title now so there are type of private controlled land use so it’s not in the public domain and this involves landowners seeking to regulate or control how land is used within a particular real housing okay and you can contrast it with the public control of land use that’s actualized to a planning departments now freehold covenants they can be used to restrict development of land even my planning permission has been granted so it’s an interesting example of where private interests can actually travel public use of land and they’re akin breathing to a form of private planning law and you’ll see some of the cases though it’s like from the 19th century and it probably goes back a lot earlier than that as well and it’s really it emerged in a time when there wasn’t an awful lot of public control over these land and so people kind of did it for themselves so the only way in which you could control the way in which you know your locality was going to develop was to try and extract a promise from whoever you bought the land from or whoever you were selling to so then in relation to who benefits and who is burdened the person who makes the covenant unselfish diversion is the

Covenant or so that’s a bit like well I’d better not compare to marketers actually because it’s kind of the opposite of what you think it’s not the person kind of extracting the promise it’s actually the person making evidence the covenant or and when the president benefits from the covenant is the government team as you can see here and then in relationship whether they’re restrictive or negative or positive restrictive negative being the same most covenants between three holders they’re restricted or negative in the sense that they’re promised not to do something on someone’s on the land such as building beyond a certain height or carrying on a trade like if you’re carrying on a business you might have to like the person who sold the land to you might extract a government or a promise from you not to carry on the trade because maybe they want to enjoy their lands peaceably or you know if you’ve got a business it might be attracting people that sort of thing and so there’d be a lot more ridiculous activity positive covenants such as an obligation to erect and maintain boundary offensives they’re very difficult to enforce as you can see among successors in title and so they’re much less common but positive covenants are enforceable between the original parties to the government because obviously they’re you just talking about the contract and you can freely enter into the contract so again as we’ve seen in another fewer areas of land they’re like a mixture of the contractual and the proprietary so the principle of privity of contract binds the parties to the contract but then you’ve got to ask the question of what happens when the land is sold do the benefits and the burdens of freehold covenants run on the land just remember as well that they all may exist in equity they are a type of proprietary interest now if you wanted to find out whether an interest could exist at law or if you weren’t sure of others it’s the law of property act 1935 section 1 just kind of eighths is useful actually to em well you can access this online it’s usually accurate sometimes because it kind of conjunct your memory about other areas of course that we studied as well such as you know some major overhauls of of land law in 1925 break the reduction of the number of legal estates and interests to for example that you could only have as legal states and it stays in fee simple absolute in possession for attorney two years after their sole the the legal estates were reduced but then also the interests the number of legal interests that could be owned were also reduced and so that’s also in section one and listed are interests such as easements charge by way of being a mortgage to leave a mortgages rent charges which we’ve hardly seen rights of entry so the thing about it is that when you go looking and the law of property act for the definition of what can be held as a legal interest and free world covenants are not mentioned then just go down to the next section and they say that and this is section one subsection three although their estates interests and charges in a over land take effect as I say it’s just interesting sometimes to go back to the the legislation in question I’m just just have a look what it says because I mean the only thing that the reason that I mentioned this is if you’re in practice and you’re going to see a business if you’re in faced with a difficult scenario legislation very handy because you’ll often find a word such as right and right can be anything I mean this is right so sometimes the quotes will actually shut down that Avenue but other times they leave it open and that’s how that you you sort of like you’ve got a piece of legislation there from 1925 there are a certain number of sections that are open to exploration they have been explored and shut down or they’ve been explored and stretched I mean as we saw with the whole section 62 when we were looking at easements so it’s it’s a good idea to kind of get into the habit of of going back to the the legislation because often people adjuster things off the top of their head and they sort of fall okay so but not go back to the original so it kind of be handled now and then section 56 of the law of

property Act states that a person may take an immediate or other interest in land or other property or the benefit of any condition rider entry covenant or agreement over it spectacle and although he may not be named as a party to the conveyance of instruments so that does basically refers to the fact that but you don’t have to be named in the instrument to be the beneficiary of the Covenant now so there’s six matters to consider the first is that whether the benefit has been passed the success is entitled and that would be following on any conveyance is from aid then was the Birman passed to any successors entitled I would be following on from being and then you have to consider the request of the common law and also consider those questions in equity and you also have to bear in mind that yes that you have to look at whether you’re dating were positive or negative comments okay just remember that and when you talk about the running of the burden and benefits of you also have to have somebody who can actually like supposing you’ve got the benefit come to see Andy and that is that’s actually not problematic but you’re going to have to have somebody here against whom you can enforce it and I think this is one of the reasons why the law has kind of developed a bit differently in in terms of enforcing benefits and enforcing Bernie because as I say the conveyances might happen at the same time like am i convey to see my in Phase II and there might not be any conveyance from the Parliament or do you see or the reverse might happen so that’s why the dog have sort of developed like its own equally but anyway and as I said I’ve done my best to break it down but the rest is kind of just learning unfortunately right so then first of all at law and positive covenants so the main case on this is rhomin Stevens and in that case it’s the House of Lords judgment in which it was definitively stated that the burden of positive covenants does not run in law or equity and positive covenants again with the covenants which are requiring and the covenant Torah or the bearer of the burden to expend some money and this often arises actually after flooding where apparently there are lots of inquiries whenever there’s like massive amounts of sharing there are a lot of inquiries to took where would you think if you wanted to find out whether your neighbor was liable whether there was a covenant or whether you could find your neighbor to repair an offense that and wiped away by flooding where would you try and exactly that’s very good yeah apparently the Land Registry get inundated with colors trying to find out about those liabilities and people tend to be very disappointed when the Land Registry turns around and we can’t help you we like their don’t know or what because I suppose that’s actually a probably a question that you to go to your solicitor with the beta of the documentation of the stuff and the Land Registry would also have the documentation but they probably don’t give out free legal advice I would imagine developing the rationale behind that and also obviously for you know there’s no provision for liability but then giving out wrong advice on a legal matter so now the other thing is that you might think well is this problematic in a setting that isn’t rural and actually it has arisen a lot in settings involving flats for the maintenance of communal areas for contributions towards yoki it’s been an absolute nightmare and the problem is the lawyers evidence so how do you change this if the courts have shut down avenues what’s your other reports statute right now let me say I’m running for election in 2014 or 2015 and I’m thinking now what what will I what would make me attractive to voters yes thing reform of the level of restrictive covenants it’s not a vote winner it’s not something that people particularly care about so it sort of tends to be left on the shelf so then if you were

particularly fascinated by this area because do remember that I said that this a guy in college gave you made his whole career on the law of easements I mean he’s written this book of easements and he gets quoted all over the place all over the world and in the House of Lords the Supreme Court etc just because he’s taken this tiny well it’s not really but a very specialized area of the level and just specialized on it and well that would be one thing you could do you could make your name from writing book of freehold covenants right the practitioners guide or alternatively what you what could you do if you didn’t want to put that much work into it what would other avenues for lower reform be running for parents okay on the tickets of reforming the law of restrictive problems orlando reform yep absolutely but also you could look for maybe a job with the little committee because they recently have produced a report on this and there is no activity so actually what you could do is to look at what they’ve done and maybe run the other thing to is well the other point that i just want to make about that i mean it is logical that you see that the benefits in equity generally follow the law and equity if anything it’s going to be more liberal but if you had a choice that you have the potential enforcement of a positive freehold covenant and you could either pursue a remedy at law or in equity which would you choose and I think that possibly you would pursue the legal remedy but presumably you know the two would be open because obviously the courts of Chancery and of common law refused so you don’t necessarily have that division and also of as well you know the equitable remedies of injunction and specifically performance well of injunction sometimes it can be satisfied by the payment of damages instead so you’ve got contractual remedies that can be brought in to satisfy or you know to ward off an injunction if the hardship done by granting an injunction would be too much so like if you were going to be forced to put it on your house it might be considered to be more just more equitable if you like to actually give the common law remedy at times now the thing about it is or not I haven’t actually come this haven’t jumped out at me before is that where there’s a remedy at law what the remedies are damages obviously but they’re not discretionary and that’s something that we’ve seen a lot of actually in this course that you know when you pursue a trust interest like if you don’t have a legal interest and then you might be able to sue in a contract if you don’t have a contract in a contractual interest but you’ve made a contribution you might be able to sue on a trust or other equitable interests like proprietary stuff but the problem is they’re all discretionary so with a contractual remedy like this it’s not discretionary so you might actually prefer that so just remember that the burden of a positive covenant doesn’t run in law or in equity and then the benefit of common law can be transmitted and this is under Section 167 26 of the law of property act and the rationale for that is a debt for example could be assigned so if somebody owes you money and you can transmit benefits on so for example if they all to be a thousand pounds beacon sell the debt to an agency and they’re going to collect now but having said that that success is a title of the beneficiary they can only suit the original government or as the original covenant government or is burdens behind

successes know then this is one of the the main cases as well in this area and in this case the defendant covenant covenant with the freeholders to maintain the banks of a particular River be better Brooke now I just want to bring a few things to your attention so it’s really Douglas catchment board that’s a public body so they don’t own land now one of the landowners then conveyed the land to people and this was expressly with the benefit of the government so sorry people the plaintiff he won’t be effective and then people are then leased to the second plaintiff then after flooding the river burst its bank and an action was brought forth by the first on the second plaintiff so in other words the owner of the freehold and the owner of the lease and they both received the benefit of government and the court of appeal of help is precision clarifying that in order for these benefits to run first of all the covenant must touch inside the land so that’s very like what we saw easements that you can’t have an easement over somebody else’s land that’s two miles away from yours it needs to be relatively approximate and the successor in title at the most of a legal estate inland and this could be elites then romantically benefited must be reasonably identifiable and also that the parties must intend the benefit must intense the benefits to Rome with the land and then just in relation to the last point that the parties must intend the benefit to Rome with the land this is normally satisfied by the operation of section 78 of the project and this states their covenant relating to any land of the Covenant II shall be deemed to be made with the Covenant II and his successors entitled and the presents driving title under him or them and shall have effect as successors and other Christmas were expressed so even though they’re not expressly enabled and it’s going to have the effect so you’ve got a statutory intervention there to seemingly now the Covenant II must amend and it doesn’t matter what government orders and then took a benefit to Rome just remember what the Covenant can be either positive or negative and then another case here is that the defendant was a surety for the rent payable by the tenants to be original and landlord then the landlord assigned the relation to the plaintiff the tenant causing new difficulties and couldn’t pay the rent so the plaintiff soon to be surety on the contractual guarantee to the original land Lord now the question is had the benefit of the Covenant passed to the plaintiff and the argument was made that the benefit come home had come along and the House of Lords agreed with this so this case is Authority for the effect and it didn’t matter that the surety didn’t own land I was looking back over that because I’ve read a number of different books to put this together and that seems to be directly in contradictions in order to be able to ensure that they get the benefit see it like if we go back a few slides and I said that the government team must don’t land and it doesn’t matter whether the government or it does but this is actually slightly different because in this case what we’ve got is it’s not actually an enforcement of the Covenant as such it’s an enforcement of the contractual liability to pay the rent so in that way the House of Lords was kind of able to split I suppose the benefits as between the contractual and the proprietary and if you’re having any difficulties with that I think back to below of mortgages but you also have a mix of the contractual and the proprietary so that you can realize the security of your debt by giving a property back but if there’s a shortfall so for example in cases negative the equity you can also sue in the contract and it’s just that sometimes when you’re reading through the books they just whizzed through that and they did who is true goodbye with they’re like how can that be but anyway it’s because the benefit that you can pursue can either relate to the Covenant or else also to the contract and just to remind you again that the burden cannot run common-law so then in

equity so the remedies in equity are injunctions specific performance and sometimes damages can also be paid in lieu of an injunction but just remember as I’ve mentioned already and that remedies are also discretionary and below in this area it’s been built around the following case and the interesting that while token token mercy is kind of its central case on the running of burdens of restrictive covenants the rationale has kind of been departed from and I think it’s very interesting to see sometimes I always got the impression that in these cases when you’ve got a rationale that doesn’t necessarily fit it’s like that that the law has changed substantially in the meantime a 1925 is kind of important here because look back at the date 1843 and we’re you know there would have been well the equitable remedies wouldn’t have been so restricted and lambo was less but your appetite but sometimes it’s whether you’ve got a case that can establish the law in a particular area but the rationale isn’t necessarily been product so I’ll go into that in a bit more detail so and basically the facts of this case are that in 1808 yeah in 1808 tulké sold a vacant plot in Leicester Square to elements and Elms covenant covenant on behalf of himself his heirs and assigns that he keep the ground free for buildings then there were a number of conveyances so matza came to own the land and he knew of the covenants okay so his land is bearing the burden but he threatened to build so if you were talking that position what would he do you go to court and seek an injunction and took success for the garden injunction but the rationale of the judge who was promised on the basis of Notice so and that’s kind of interesting because the rationale and the case doesn’t rest on the covenant being a type of interest in the land so rather than granting the injunction of the basis that restrictive covenants found successors in title he said no well basically the question is here that moxa was aware of the covenants but considered himself not to be bound because the law in the area wasn’t established I mean the lower that we’ve been looking at up to now it’s from 1925 look at the date of this case that wasn’t offer as if he couldn’t like you had no statutory instrument that you could read something into and so I suppose at the time it was more rational for the judges to look at the doctrine of notice but obviously the case is still the foundation of this area of the lobe of the rationalism and just think back to what we look just when we saw unregistered land and the problems of the doctrine of notice and the way in which it was raining in significant thing so I think if that case were being decided today and it were favorable to talk talk would get the injunction on the basis that there was a proprietary interest in the land which had bones successes in title as opposed to and being bound under the doctrine of notice because obviously notice has become greatly reduced now then in relation to just continuing home the burden are restrictive covenants in Hayward and things like a mortgage a mortgagee of an assignee wasn’t founded and because this would require expenditure so then a practice emerged that only burdens of restrictive covenants could run with the land and this has been challenged in Roland Stevens in 1994 of the House of Lords held that covenant to maintain the roof was not finding on a successor entitled for government or a sort of the barrier to bring so that’s just a kind of setting in stone reading that positive covenants are only enforceable against the original covenant or now I also made a small in comparison with the law of easements that the lowers were looked into recognized as an easement a right which restricts the use to which the survey until now can put the land so just remember that easements are like a right to pass over somebody but it doesn’t necessarily prevent them from I don’t know growing flowers they are doing whatever they want with the

land providing that they don’t cut off the easement and restrictive covenants step into this breach now and obviously again before the burden her restrictive covenant will run with the land there has to be a dominant tenant and also the person seeking to enforce the covenant they have to retain them to be benefited and that kind of makes sense as I said the earlier case which you saw that there was a pursuer loved a debt that was actually under the contract and I suppose arguably the sort of case that should maybe be left out of you know discussion of the law in this area but they’re still kind of relevant so in this case and for me and Barker for me have sold all his land subject to various covenants and the Clintons acquired a part of land with notice of the covenants and then the administrator of foreign visa state souls in his Junction to restrict building on the land because it was alleged that the building would infringe the covenants and that argument failed because the covenants or the burden of the covenants didn’t run because the enforcer hadn’t actually retained any man to the land and so don’t say and can come back at a later point and enforce covenants I don’t actually know why people who do that actually like if they had sold off of language privately then he’s seeking to enforce the government against it would be more logical that the current holder of the land would do so although some rights are actually retained I don’t know maybe sometimes the diggers have been too much time on their hands or but there’s some kind of agreement between the current holder of the land you you often wouldn’t know what’s behind that sort of activity or that they’re particularly litigious or that they’ve sold the land to a friend or something now and this the issue that’s the the burden of covenants didn’t bind where the enforcer or the president seeking to enforce didn’t retain any land that was confirmed by London County Council and Palin but in this case the County Council had me retained anything as it’s been named but also County Council’s don’t necessarily always they’re not all like public bodies would always necessarily own land where they were trying to enforce covenants so then you do have some statutory intervention in that case then in equity provide restrictive covenants to Rome the Covenant must touch and concern the land and the two shots again they have to be sufficiently proximate to each other to the dominant land benefit and then parties must also intend for the government to run and the relevant piece of legislation there is section 79 so it’s interesting as well for you like at home to just consult this and to see that M it says that a government relating to any land of a covenant or so the Covenant or you know immediately there that you’re talking about the Burnham and or capable of being bound by him shall on less a country intention is expressed so in other words to rule out the running of the burden you’d have to specifically the status be deemed to be made by the covenant or on behalf of himself and then it also adds in his successors and ties around the person’s deriving title from under him so as I say it’s kind of it’s a nice practice to get into to just consult the legislation then just remember that when we were talking about restrictive covenants when we dealt with the area of registered and unregistered land and it’s kind of relevant to you know when I was talking there about the changes but the law has brought about to the doctrine of notice well after token month so I obviously so in red in unregistered land freehold covenants they normally have to be registered under the land Charities Act okay because they would generally be sort of seen as a commercial type of interest and they’re specifically listed there so remember and we had a line of cases Midland Bank and green and also Lloyds Bank and Carrick and those cases established that if you’re a rebel interest was listed in the Land Charges Act then it had to be registered and if it wasn’t to be didn’t find successes in title but there’s a small qualification of the Act and it binds it if you failed to comply with the registration requirements so in other words if you’ve got a restrictive covenant and it’s over

unregistered land it will be listed most of them will be listed in the Land Charges Act and if you fail to register it it won’t bind purchasers for money or money’s worth so if you’re not a purchaser but you’re a successor in title so for instance there are some settlements before marriage you would be bound by that restrictive covenant or if you’re a squatter you’ll also be bound because squatters are not purchasers okay so there are a few exceptions like that to the strict registration rules and then there are some covenants which were created before 1926 and those covenants would still fall under the dominant notice so we didn’t see any examples of those when we were looking at unregistered lands but we did see an easement in ice and high which your tenant said had arisen under proprietary estoppel so it wasn’t one of the easements listed in the Lamb charge effect that had come into being host 1926 so you often have a residual category or a swimming a degree of certain interests and that wouldn’t have come within the scope of the bureaucratization okay and then in registered land covenants they have to be protected by an entry of a notice in the charges register so you know when you’re the registered proprietor of a particular piece of property you’ve got three registers that attach to your property always you’ve got the property register which describes the property of the benefit of restrictive covenants and the benefits of easements and then we’ve got the proprietorship register which will give you info which would give your name for example any restrictions and then you’ve got the charges register which tells any buyer of all the interests that exist that are negative to the property so the burden of easements the burden of restrictive covenants etc etc we’ll go into the charges register and they don’t like restrictive covenants cannot be an overriding interest or an interest which overrides if they’re not if they’re not registered so like the formalities there’s no kind of there’s no followed by hospital basically so even though you might argue that you have been in possession of the property that won’t save the restrictive covenant and once the restrictive covenant has left if you failed to comply with the registration requirements that’s the end of it it won’t be revived on a new conveyance so in fact actually the new conveyors would have to get a new set of agreements as amongst themselves and that might or might not be possible and I would probably involve somebody having to pay you like the the beneficiary having to pay a substantial amount of money now I’m going to give you ten mitrik understand we just see the benefits when yeah restrictive covenants actually the books don’t even deal with this part the evidence of restrictive covenants and I guess it’s because equity has become so developed that they just refer to equitable interests or maybe it’s just that there hasn’t been any case on that I’m not exactly sure any questions