Covenants in land law.
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A covenant in land law is a promise created by deed1 between two parties, one providing the promise not to engage in an activity (negative) or to do a positive action on their own land for the benefit of the other parties neighbouring land e.g. preservation of non-business character in residential areas. Covenants between freeholders contain two aspects; a benefit to the person receiving the obligation and a corresponding burden to the provider. The rules relating to transmission of the benefit of the covenant are independent from the transmission of a burden. It is possible for the benefit to run to 'successors in title' of the original covenantee but for the burden to have been destroyed or to bind original covenantor only (see later), and vice versa. The benefit of a covenant will pass provided that the covenant 'touches and concerns'2 the land of the original covenantee at the time it was made. This means property law is concerned with the transmission of proprietary rights, not personal advantages. This ensures the title is not cluttered up by obligations that are merely temporary, ambiguous and personal in nature, the conveyance of land is unfettered. Diagram to illustrate parties involved. A = COVANANTEE - Alan has benefit of covenant (Freehold owner) (receives the promise) B = COVENANTOR - Justin has burden of covenant and the person whom gives the benefit. (Freehold owner) C = SUCCESSOR IN TITLE TO ORGINAL COVENANTEE = Colin buys from Alan in 1995. D = SUCESSOR IN TITLE TO ORGINAL COVENANTOR= Kenneth buys from Justin takes assignment.
Unless no expressed exclusion clause in the deed of covenants is found when the property was conveyed. (We would need to examine the deed - see footnote). As well as satisfying the above benefit conditions we must also show that Kenneth has the burden of the covenant. At common law In Rhone's and Stephens, case affirmed,6 that positive or negative burdens never run with the land to future successors in title.7 Thus Colin cannot sue Kenneth directly for breach although we can satisfy the benefit passing at law, we cannot demonstrate that Kenneth's land is burdened with them. Colin can enforce the covenant against any person who is subject to the burden of the covenant at law, usually the original covenantor. Colin could only sue the original party Justin (coventantor) to seek damages (see discussion later), for breach of obligations given by him as they remain for all time The rules of EQUITY may help here, the first three conditions for benefit to run must be met the same as they are in LAW (discussed above shows they would appear to be satisfied or implied by statute). The fourth condition differs instead of intention we must look at how transmission occurs i.e. how the covenant is attached to the land and would run with all future owners by ways prescribed by equity8 these methods being annexation, assignment and scheme of development: Annexation of benefit(attached to land)-there exists 3 types * Express - by reference to the wording which relates to the dominant land and not to a particular individual.
In Thamesmead22 this free choice was shown, but in this case Kenneth there appears to be no choice but to use the pathway as their appears to be no other access the to the public highway. If it is used at least on one occasion, then must pay towards maintenance. This doctrine can apply in respect of covenant 1 only. Covenant 1 is positive in nature and will not pass at law or equity for Colin to enforce. There is possibility to insist on payment due to use of the road, if Kenneth is using the private access road. Covenant 2 is negative in nature but has a personal element and thus would not pass at law and equity. Covenant 3 is negative. The claimant if successful in law and showing that loss has occurred will be awarded nominal damages. If pursuing enforcement of covenants in equity, only equitable remedies are available which are discretionary i.e. Injunction. Kenneth has the option to apply to the land tribunal using s 84 of LPA, which has powers to discharge or modify the covenants, which are restrictive and impeding in nature and ultimately effect reasonable use of private land e.g. being able to dry washing. "Any delay in issuing proceedings may result in damages in lieu being awarded instead of an injunction, where there is a substantial delay a loss of right to relief through acquiescence would occur.23 "If the claimant is suing in equity, he must establish that the burden has passed to the defendant in equity....if the claimant is suing at law, he must establish that the defendant is subject to the burden at law.
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