Land Law - Chapter 4 - Freehold Covenants

What is a covenant?

A promise to do or not do something e.g. a promise not to build on the land.

Is a covenant capable of being legal?

NO - they are equitable only. Not listed in s1(2) of the LPA 1925.

What is the correct formality for covenants?

Need to be in writing and signed - s53(1) LPA 1925.

Possible to create a covenant by contract - but usually created by deed.

This is because covenants tend to be created on sale of part land and are included in the transfer.

What is a covenantee vs covenantor?

Covenantee = Person who is the RECIPIENT of the promise and has the benefit of the covenant.

Covenantor = Makes the promise and has the burden of the covenant.

What is an annexation vs an assignment?

Annexation = The benefit of the covenant is ATTACHED TO THE LAND of the covenantee and so passed AUTOMATICALLY to a successor in title.

Assignment = An express TRANSFER of the benefit of the covenant to a successor in title to the covenantee.

What is a positive covenant vs a restrictive covenant?

Positive covenant = Imposes an obligation on the covenantor (e.g. maintain the wall). Requires some effort to do this.

Restrictive covenant = Restricts the person from doing something. No effort or expense is needed.

What responsibilities or liability does the original covenantor have in terms of the original covenant?

Original covenantor & covenantee = parties to a contract & are bound by privity of contract.

Means even if land is sold, the original covenantor may have liability FOREVER.

The obligation of the original covenantor relates to both positive and restrictive covenants.

Does the burden of a covenant pass at common law?

NO - seen as unfair because would make new person liable for a promise that they didn't make.

Austerberry v Corporation of Oldham.

Applies to both restrictive and positive covenants - cannot pass at common law.

Original covenantor (original owner of burdened land) will be bound by privity of contract. Bound by her promise forever.