Fourthly, the burden of the restrictive covenant must be intended to run with the land. To this effect there must be evidence that the burden of the covenant is of a proprietary nature and not merely personal. This is easily dealt with as s.79 (1) Law Property Act 1925 (LPA) states that in absence of a contrary intention the burden of the restrictive covenant is deemed to be attached to the land. Furthermore we have proof that Arthur intended the covenants to be made with him and his successors and the owners of adjoining land, hence either by statute or by looking at the deed it seems clear to me that the burden has been “annexed” to the land (Tophams Ltd v Earl of Sefton 1967).
One last requirement is that the covenant itself has to be registered in order for it to be binding on a subsequent purchaser: under the Land registration Act 2002 it is vital that the covenant be registered as a minor interest by the registered owner of the land in question (i.e. Universal Ltd). If this did not obtain then the covenant would be void and unenforceable. Since there is no mention of any fact regarding this in the present case and since it is likely that the restrictive covenant will have been protected by registration at the time it was created on transfer of the land from Arthur to Universal Ltd, I will assume that it is registered and that all the factors above being considered the burden of the covenant has run with the land to bind Breezeblock plc.
The benefit of the covenant
In order for Max to enforce the covenant however it is essential that the benefit of the original covenantee has passed to him. At law this will only pass if the claimant is suing the original covenantor. Since this is not the case and at any rate the claim is being brought in equity we must look at the conditions for the benefit to pass in equity.
The first requirement is that the covenant must touch and concern the land, similarly as for the burden, as explained in Swift Investments. Max is the owner of a mansion in the part of the land that was sold to Luxury developments Ltd. by Arthur’s son, however his plot of land does not adjoin the original Lot A. It is hence arguable that the benefit of the covenant does not touch his land. In Re Union of London however, it was said that the benefit of a restrictive covenant can pass, if not taken only for personal benefit but to expose the land to a greater advantage, even though it is not annexed to the land if a. the land can be benefited by the covenant and b. the land is ascertainable/ certain. However this is subject to a last condition that the assignment of the interest be made at the same time as the conveyance and we have no evidence of this.
Notwithstanding this the covenant does affect the “quality” and “value” of his land since it is arguable that the value of his Luxury mansion will decrease if the density of the building development adjacent to him is above that stipulated by the restrictive covenant. This is compounded by the fact that, as successor in title to Arthur, his son will have sold the land to Luxury Developments plc (and that they in turn will have purchased it) subject to this restrictive covenant.
Secondly, the claimant must have a legal or equitable estate in the land of the original covenantee. This does not pose a problem since, as the purchaser of the mansion, Max is certain to have legal title to it and the grounds surrounding it. In any case s.78 of the LPA 1925 allows any occupier to enforce the restrictive covenant since it deems the “owners and the occupiers for the time being” to be successors in title with respect to its enforcement.
Thirdly, the benefit of the covenant must have been passed to the claimant in one of three ways: a. by express of implied annexation; b. by express or implied assignment or c. by a “building scheme”.
The benefit has definitely passed to Arthur’s son by express or implied annexation due to the words in the deed for purchase of the land by Universal Ltd. However whether this is in turn passed to Luxury Developments depends on whether they can be classified as successors in title. Assuming it has I think it is questionable whether the benefit has passed to Max under a building scheme. As set out in Elliston v Reacher 1908 there are necessary factual conditions for such a scheme. These are that there must be:
- a common vendor- in the present case Luxury Developments plc;
- the land must be laid out in identifiable plots- although we are not given any information as to this, we are told that four mansions have been built each with a large garden;
- the benefit of every purchaser’s covenants must be intended to be mutually enforceable;
- the purchaser’s must have bought the land on the condition that this was intended;
- the area of the scheme must be well defined- in the present case the remainder of Broadoak park.
However as in the case of Lund v Taylor 1975, I think it is arguable that we do not have enough evidence of reciprocity in order to enforce the covenant in this way.
The only other way Max could enforce the covenant since we do not have any evidence that the covenant was assigned to him either expressly or impliedly by Luxury Developments could be to simply ask them as vendors to assign the benefit to him. I propose that unless this is the case it is not evident that the benefit of the covenant has run with the land to Max and that it is probable that he will not be able to enforce the covenant, even though the burden of it has passed to Breezeblock plc.
Naomi
Naomi is the owner of Bridge farm that adjoined the original Broadoak park and overlooks Lot A. Since owners of adjoining land are mentioned in the original formulation of the covenant, I would regard Naomi as an original covenantee. It is arguable therefore that the covenant “touches” and “concerns” her land (Rogers v Hosegood 1900) in that it would affect the value and the quality of her land since it overlooks Lot A. If this holds it is arguable that she has a legal estate in the land of the original covenantee since she undoubtedly owns her farm. Lastly, it is clear from the deed of the original conveyance and covenants in respect of Universal Ltd that the benefit has been expressly annexed to her land.
Since I have already established that the burden passes to Breezeblock plc, I would argue that she is able to enforce the covenant.
Other ways of enforcing burden of positive covenant.
The burden of the positive covenant for the maintaining of the road is enforceable as between the original covenantor and covenantee: hence between Arthur and Universal Ltd and possibly between Arthur’s son before he sells the retained property and Universal Ltd. It is clear that the owners of the mansions have an interest in the road being maintained to a satisfactory condition as they need it to reach the main road. The ways of doing this are though a chain of covenants, which is not applicable in this case and the principle of mutual benefit and burden.
In Halsall v Brizell 1957 it was made clear that a landowner may take the benefit of the covenant if they share the burden. In the present case I think it is unlikely that Max or any other owner of a mansion in the remaining Broadoak park lot would be able to enforce the covenant since they are incurring no burden for the benefit they are enjoying of driving though Lot A to the main road. Furthermore in Thamesmead Town v Allotey 1998 the Court of Appeal held that it was necessary for the burden to be the flipside of the benefit. Following this principle it would seem likely that the court would let the owners of the mansion use the road through Lot A provided they pay for its upkeep.
