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.

Dominant tenement = Brantville Estate

Servient tenement = Plot X

Kenneth is in breach of covenants 1, 2 and 3.

No contractual relationship exists between Colin and Kenneth. Privity of contract exists between Alan and Justin (the original parties), allowing Alan to sue Justin in contract if the covenants are breached.

There are different rules relating to positive and negative covenants, when deciding which category a covenant falls within we look at the effect of the covenant and not the wording:

) Half annual maintenance cost of 'private' road = Positive covenant (oblige you to do an action, pay money)

2) No nuisance to Brantville estate by hanging out washing = Negative covenant

3) Plot X restricted use for residential purpose only = Negative covenant (no business)

There are sets of rules governing the enforceability of the covenants at common law and equity. The obligations made in 1988 would not be enforceable in contract between Colin and Kenneth as neither were original parties to the covenant. In order for covenants to be directly enforceable against Kenneth, Colin would have to look at the positions relating to common law and equity principles:

'It is necessary to remember that before a claimant can sue a defendant on a particular covenant, the benefit must have passed to the claimant and the burden must have passed to the defendant'
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BENEFIT of the covenant has become attached (run with) to the land in relation to Colin.

BURDEN has also become attached to the land so that Kenneth is subject to the covenants.

For Colin to sue at law four conditions must be established for the benefit of the covenant to attach to the dominant land.3

. At the time of the covenants creation, does the original covenantee (Alan) own a legal estate in the dominant land? This condition is satisfied as Alan was the 'fee simple' owner (Freehold estate)

2. The successor in title ...

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