Land law unit 8 - Freehold Covenants

P&A Swift Investments v Combined English Stores

Test for whether a covenant touches and concerns the land; 1. The covenant benefits only the landowner for time being. 2. The covenant affects the nature, quality, mode of user or value of the land. 3. The covenant is not expressed to be personal.

Rhone v Stephens

1. A positive covenant will not be enforced in equity against successors in title.

2. For the mutual benefit and burden rule to work, the benefit and burden must be explicitly interlinked: it must be impossible to take the benefit without the burden.

Austerberry v Oldham Corporation

The burden of a covenant will not pass at common law

Halsall v Brizell

Benefit and burden rule is available where the benefit and the burden were conferred in the same transaction and there is a reciprocal relationship.

Thamesmead Town v Allotey

Two requirements for the enforceability of a positive covenant against a successor in title to the covenantor: 1. Condition of discharging the burden must be relevant to the exercise of the rights which enable the benefit to be obtained. 2. Successors in title must have the opportunity to choose whether to take the benefit or having taken it to renounce it and escape the burden.

Tulk v Moxhay

Established the four criteria for when the burden of a covenant passes; 1. Covenant must be restrictive. 2. The covenant, at the time it was made, was for the benefit of the covenantee’s land. 3. The burden of the covenant must have been intended to run with the covenantor’s land. 4. The covenant must be duly protected by registration.