COVENANTS

Austerbery v Oldham Corporation

• rule sets out that burden cannot pass at common law

• upheld in Rhone v Stevens- (Lord Templeman (317) ‘the benefit of a covenant may run with the land at law but not the burden see: Austerberry case’

(P&A) Swift Investments v. Combined English Store Groups [1989]

• covenant must touch and concern the land- not focused on personal obligations

Smith v Douglas Catchment Board [1949]

• If the covenant runs, it binds the covenantor even against successors (i.e. not just original parties)

When the benefit runs:

Touch and concern requirement

Intention to run

• The parties must intend the benefit to pass with the land.

Identification of benefited land

• The land does not need to be expressly identified in the deed

Statutory support

• LPA 1925 s.78(1), the benefit passes automatically to successors in title once the above are satisfied.

Elliston v Reacher [1908

• key case for building schemes

• Every buyer had notice of the scheme

Tulk v Moxhay

• Negative covenants were allowed through equity

• why the building of leister square did not happen

1. The covenant must be restrictive (negative)

2. At the date of the covenant, the covenantee owned the land that was benefitted by the covenant (Claimant prove) -

3. The original parties intended the burden to run with the land to bind successors (s.79 LPA 1925)

4. The covenantor must take notice of the covenant (Unreg & purchased: Class D(ii)) Reg – notice in the charges register

Halsall v Brizell [1957]

• doctrine of mutual benefit and burden

• has the same effect in certain circumstances as a positive obligation

• case wasn’t successful- opened up clearer advocacy has the same effect in certain circumstances as a positive obligation

Tito v Waddell

• Megarry- pure principle of benefit and burden

• A burden that has been made a condition of the benefit, or is annexed to property, simply passes with it

Davis v Jones [2009]

Benefit and Burden must be conferred in the same transaction