The owner of a freehold title of real estate enjoys the most superior form of private property ownership.

The owner of a freehold title of real estate enjoys the most superior form of private property ownership. A freeholder is considered to be the absolute owner of the land and buildings comprised in his title; he has the right to occupy, use and enjoy his property forever or until he transfers the title to a new owner, and his heirs are entitled to inherit his title upon his death. Nevertheless, a freeholder does not have total freedom to do what he wishes on his land.

The first form of outside restriction of a freeholder’s ownership are public controls, in other words a freeholder must comply with all applicable laws which combine to control the use of, and activities upon, his property. i.e. the use to which land and buildings may be put, erection of new buildings on land, is regularly subject to governmental approval procedures.

The second form of external restriction of freehold ownership is of a more private nature and consists of restrictions placed upon the freehold title. For example, neighbors and the general public may enjoy rights of way over pathways crossing the freeholder’s land, may have a right of access onto the land to effect repairs to their own property. The rights that others enjoy over privately owned property are known as easements.

A further form of title restriction is the covenant. A covenant may be an obligation to do something such as an obligation to keep the buildings on the land in a good state of repair or an obligation to make a financial contribution to some shared facility such as a car park or private road. Alternatively, a covenant may take the form of a prohibition such as a prohibition against using the land for commercial purposes or a prohibition against further building on the land.

Relating it your situation the question to be asked is that does the benefit or burden of freehold covenant run in law. The answer being that under s 56(1) of the Law Property Act (LPA) 1925 provides that ‘a person may take the benefit of any condition…covenant or agreement over or respecting land…although he may not be named as a party to the conveyance or other instrument’. This for you means that statute law gives you a benefit as the you are regarded as the original covenantee by the case of Re Ecclesiastical Commissioners for England’s Conveyance 1936 which held that the effect of s56 was that a person expressed in the conveyance to be one whose benefit the covenant was made was to be regarded as the original covenantee. As well as this you can rely on the general contractual provisions in the Contracts (Rights of Third Parties) Act 1999.

After sale does the benefit pass to the new owner this point can be found by applying four conditions set out in the Law Property Act.

The covenant must ‘touch and concern’ the land
At time covenant was made, it must have been the intention of the parties that the benefit of the covenant should run with the land to the covanantee’s successors in title;
At the time when the covenant was made, the covenantee must have held the legal estate in the land to be benefited;
The claimant must derive his title from under the original covenantee (common ...

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After sale does the benefit pass to the new owner this point can be found by applying four conditions set out in the Law Property Act.

The covenant must ‘touch and concern’ the land
At time covenant was made, it must have been the intention of the parties that the benefit of the covenant should run with the land to the covanantee’s successors in title;
At the time when the covenant was made, the covenantee must have held the legal estate in the land to be benefited;
The claimant must derive his title from under the original covenantee (common law amended by LPA 1925 s78)

For you this means that the covenants that Lara passed down to you still run in common law as the covenant ‘touches and concerns’ the land and this can be found out by a using a working ascertained test found by lord Oliver in the case of P & A Swift Investments v Combined English Stores Group the 1st element being that the covenant must benefit the estate owner for the time being in your case the covenant does benefit you as it for the up keep of the road the 2nd element is that the covenant must affect the nature, quality, mode of use of the benefited land. The 3rd even if it satisfies the first two elements of the test a covenant will not be regarded as touching and concerning the land if the benefit is in some way expressed to be personal to the covenantee. To show whether the parties intended on the covenants to run with the land s 78 (1) of the LPA 1925, which gives a benefit to the successors of the covenantee and intention can be provided by the covenantor covenanting with the covenantee his successors in title and those deriving title under him. At the time the covenant was made you should hold the legal estate, which you did, and you derived this estate from the original covenantee. All this means for you that in common law your benefit does run with the land and you can sue if there is a breach to the covenants.

Since the benefit runs in common law does that mean that the burden will run as well and the answer will be no so it means that Darren does not have the burden to uphold the covenants. This due to common law not wanting to put restrains on the use of a estate and is supported by the case of Austerberry v The Corporation of Oldham2 that held that at common the obligation to make up a road and keep it in good repair could not pass to the successors in title and this was reaffirmed in Rhone v Stephens3. But it seems that there could be a way for the burden to pass at common law that us through the chain of indemnity in which the covenantee can sue the original covenantor this means that the original covenantor is obligated to require an indemnity covenant from his successors which will absolve him from all liability occurring from his successors breach of covenants. It seems this is what Mark did and Darren agreed to the terms which means that all liability has passed on to him so his breach of the covenants means you can sue him. Another method of creating burden at common law is through the case of Halsall v Brizell4 which found that the successor could not take a benefit of an agreement unless he was prepared to accept the related burdens thus Darren cannot have use of the road unless he is prepared to pay for its maintenance. It seems that common law would be able to help you in claim.

This is not the only way to help you with your claim so if common law does not work you can rely on equity in your claim. Since the common law approach brings about considerable inconvenience as covenants can become unenforceable because the burdened land has changed hands equity brought about equitable principles that meant that the purchaser who acquired burdened land with knowledge of this should be bound to observe them. The case of Tulk v Moxhay 5 held that prior knowledge of covenants attached to the land meant that the successor has the obligation to follow those convenants and it identified the rules that must be satisfied before equity will regard the burden of a covenant as passing under the Tulk v Moxhay doctrine the rules are

The covenant must be negative
At the date of the covenant, the covenantee must have owned land which was benefited by the covenant;
The original parties must have intended that the burden should run to bind successors
General equitable principles apply

Under rule in Tulk v Moxhay it seems that the covenant on repair and upkeep of the road cannot be enforced, as it is a positive covenant while that of the property should be used for residential purposes only is a negative covenant which fits the 1st requirement and at the date of the covenant the convenantee being Lara owned the land which was to be benefited. To see if original parties intended the covenant to run with land this is by the covenantor covenanting on be half of himself and his successors in title, those deriving title under him. In absence of express provision convenantor is deemed to have covenanted by virtue of LPA 1925 s 79 and if the document creating the covenant is silent on the matter it is presumed that it is intended to bind later owners. In equity it is good to come with a clear conscience thus you cannot seek an equitable remedy if you breaching a covenant as the general principles and maxims of equity will apply to you. It seems that in equity that the burden does run with the land but this is for negative convenants as for positive covenants it seems that the courts in the case of Haywood v Brunswick Permanent Benefit Building Society6 Lindely LJ said ‘that only such a covenant as can be compiled with without expenditure of money will be enforced against a successor in title.’ This means that a covenant for maintenance of a road cannot be enforced, as it will require the owner of the burdened land to pay some money. A number of ways in which positive covenants can be made to bind successors through granting of leases, indemnity covenants, creating estate rentcharges, creating long leases which are converted to freehold estates just to mention a few.

If the burden runs in equity then the benefit must run in equity and equity has three ways in which a purchaser of benefited land can acquire rights to enforce the covenant

By annexation
Express assignment
Under special rules relating to building schemes

Annexation can occur in three ways expressed implied and statutory in express annexation the words used to annex the benefit of the covenant to the land so it forever passes automatically with the land. An express term in the contract would suffice as an express way of annexing the benefit to the land that would give later successors benefits in relation to covenants attached to the land. Implied annexation would suffice if there were no express words of annexation. This is derived from the case of Marten v Flight Refuelling7 where Wilberforce J mentioned the view ‘that an intention to benefit may be found from surrounding or attending circumstances’. In certain cases statutory annexation may be more effective as Lord Brightman LJ said ‘s 78 implies a covenant relating to land which is restrictive of the user thereof is enforceable at the suit of (i) a successor in title to the covenantee (ii) a person deriving title under the covenantee or under his successors in title (iii) owner intended to be benefited by the covenant.’ This will help your claim, as you as restrictive covenant will be enforceable against a successor in title.

Lara expressly assigned you the benefits of the user covenant when she sold the plot this means that you can seek to enforce for breach of the covenants, as there is an unbroken chain of assignments and the benefit has been passed to the new owner who now seeks to enforce the covenant.8

As building schemes they are relation to plots of land in which the owners create covenants with each other.

From all this I hope that you have a rough idea of where you now stand in relation to the covenants. In conclusion I would give an insight into your remedies that is if you decide to sue for failure to make payments towards the maintenance of the road the courts would award you a mandatory injunction which would make Darren pay money for maintenance or you can make the repairs yourself then seek damages. As for Darren trying to start a vehicle repair yard it would be advisable to get a prohibitory injunction that would prevent Darren from starting his business.

[1989] AC 632

2 (1885) 29 ChD 750

3 [1994] 2 AC 310

4 [1957] Ch 169

5 (1848) 2 Ph 774

6 (1881) 8 QBD 403

7 [1962] Ch 115

8 Re Pinewood Estate, Farnborough [1958] Ch 280