To establish whether, at common law, the benefits of the covenants 'run-with' or have 'become attached to' the land there are four conditions that must be satisfied.

In support of suing Kenneth indirectly, two factors must be considered. Firstly the case of Austerberry6 gives the principle that a successor in title to the original covenantee (where it can be proved that he has acquired the benefit at common law) has a right to sue the original covenantor for damages, even though the breach of covenant complained of was caused by a successor in title to the original covenantor. Secondly, it would appear that it was Alan's intention to assign the benefit of the covenant. As per S.136 LPA 'provided that the assignment was in writing and express notice in writing was given to the covenantor' this would convey the privity of contract to Colin giving him the locus standi to sue Justin for breach of contract. Whether the formalities for S.136 have been satisfied is debatable. The fact that the assignment was a term within the contract confirms that it was put in writing, however, the fact that Justin sold-up two years before Alan conveyed Brantville to Colin gives a strong indication that express notice may not have been given to the covenantor and therefore S.136 was not satisfied. Whether the court would accept a retrospective notice being given to Justin is debatable.

Another 'indirect' method available to Colin is the pure principle of Halsall v. Brizell7; that whenever rights are given (using the access road) to an individual (Kenneth) then obligations (paying towards maintenance) in the deed are enforceable8; representative of the equitable maxim he who takes the benefit also takes the burden. Consequently, using one of these indirect methods it is very probable that Colin can enforce covenant one.

Covenants two and three are restrictive covenants and as such are not subject to the same restrictions and hurdles as positive covenants. However, these covenants must still satisfy the equitable requirements, inasmuch as proving that they run with the land. In determining whether the benefits9 of the covenants run in equity there are four conditions, the first three of which are the same as the conditions 'at law' and as such have been confirmed as affirmative (above). Condition four requires that the benefit of the covenant must have been transmitted in one of three ways required by equity; 1) assignment, 2) annexation, 3) building scheme10. Miles v. Easter11 laid down five requirements for an equitable assignment to be valid.

'(a) covenant must have been taken for the benefit of land of the covenantee;

(b) the land must be indicated with reasonable certainty;

(c) the dominant land must be retained in whole or in part by the plaintiff; and

(d) be capable of benefiting from the covenant; and

(e) the assignment of the covenant and the conveyance of the land to which it relates must be contemporaneous.'12

Substantially, these requirements would be satisfied although we would not be able to answer (b) without reference to the conveyance. Regardless of this however, Colin can rely upon the equitable maxim - Equity looks to the intent rather than the form; which would allow the assignment based upon the parties intentions . Incidentally it should be noted that the assignment only grants the benefit of the covenant to the person - not to the land.

A more attractive proposition, especially for future buyers of Brantville is that the benefits of the covenants have become nailed (annexed) to the land itself. 'Annexation is the linking of the covenant to the benefited land, generally by the covenant itself. Once annexed, the benefit passes automatically on the transfer of the land:..'13 The case of Rogers v. Hosegood demonstrates how this 'link' is achieved through the wording in the covenant, which must show an 'intent that the covenant may enure to the benefit of vendors, their successors and assigns and others claiming under them to all or any of their land adjoining'14.

Although we are told that the covenants were made by Justin with Alan and his successors and assigns, there is no specific mention of land and without the covenants to review, it would be clearly erroneous to assume that there is express wording of annexation, therefore we can rely upon statutory annexation as provided by S.78 (1) LPA: 'A covenant relating to any land of the covenantee shall be deemed to be made with the covenantee and his successors in title and persons deriving title under him or them, and shall have the effect as if such successors and others were expressed'. Furthermore in conjunction with S.78, Federated Homes15 serves to 'automatically annex the covenant to each and every part of the dominant land'.16 One problem with the use of S.78 however, is that it conflicts with the principle of assignment. Authority for this proposition can be found in the case of Roake v. Chadha17 where S.78 was excluded because the express wording of the assignment stated that the benefit should only pass by assignment. Although there are obvious analogies between Roake and Colin's case we cannot be certain that Alan wished to exclude S.78 without analysing the actual conveyance. On this basis it is difficult to draw any firm conclusions other than the benefit of the covenants will have been transmitted by one method, but it is uncertain whether this method is assignment or annexation.

In determining whether the burden of the covenants run the five conditions set out in Tulk v. Moxhay18 must be satisfied. Firstly the covenant must be negative. Both covenant two and three are restrictive. Secondly, that at the time the covenants were made there must have been a dominant tenement19. We are told that Brantville was the dominant tenement when the covenants were made. Thirdly, the covenant must touch and concern the dominant land20. As discussed in relation to the running of the benefit at law covenants two and three do benefit the dominant land. Fourthly, the burden must have been intended to run with the servient land. We are not told and do not have access to the covenants to determine whether such wording is present, therefore we can rely on S.79 LPA21 to imply them, unless that section had been expressly or impliedly22 excluded in the deed of covenant.

Fifthly, a restrictive covenant will not run with the burdened land unless it has been registered. The type of registration will depend on whether the land is registered or unregistered; if registered then the covenants must have been registered with HM Land Registry as an agreed notice23. If the land is unregistered then the covenants must have been registered as Class D (ii) land charges with the Land Charges Registry24. So long as these covenants were registered in one of these ways before Kenneth bought the land then he will be bound; if however they were not registered then Kenneth took the property free of these obligations and Colin would have no remedy25. Furthermore these covenants do not have the protected status of an overriding interest as per Sch. 1 - 3 Land Registration Act 2002 and would be worthless. However, assuming that Alan was sensible and sought legal advice to draw up the conveyance26 and deeds of covenant, it is likely that the lawyer would have (unless negligent) advised Alan to register the covenants in one of the above methods. If this is the case then Colin will be able to enforce covenants two and three.

Insofar as Kenneth postulating that he will have the covenants removed by the court, he would have to apply to the Land Tribunal under S.84 LPA27, which is a lengthy process and there is no guarantee of success. In exercising their discretion the tribunal will examine the covenants against four grounds. Firstly, that the covenant is old and has become obsolete. This ground is not applicable to any of Colin's covenants. The second and third grounds are not relevant because they relate to planning permission and verbal agreement between the parties (unlikely!). The final ground of 'no-injury' asks whether the removal of the covenant would affect, i.e. use, value or occupation of the dominant tenement. It is submitted that the removal of covenants one and three would affect the dominant tenement, whereas it is arguable whether covenant two would have an adverse affect. In its investigations the court may find that covenant two is unfair and may discharge it, although we can never be certain how a court may decide when exercising its discretion.

The final point to note for Colin is that if Kenneth continues to ignore his obligations, Colin has two remedies. At common law he can claim damages for breach of covenant one, while the remedies for covenants two and three would be equitable injunctions, although it is noted that in limited circumstances the court may award equitable damages28. It must be noted however that the doctrine of 'laches' applies and the courts are less inclined to give an injunction where there has been an ongoing or significant delay between the breach and the application for injunction.

S.1 (1) LPA 1925; (a) Fee Simple, (b) Term of Years

2 Rogers v. Hosegood [1900] 2 Ch 388

3 Hereinafter LPA

4 (1885) 29 Ch D 750 (CA) followed by HL - Rhone v. Stephens [1994] 2 AC 310

5 [1881] 8 QBD 403

6 ibid.

7 [1957] Ch 169

8 This principle was extending further in Rhone v. Stephens and Thamesmead Town v. Allotey although the latter case brought the development of case law back in line with Halsall.

9 Prof. Gravells' theory adopted, whereby there is no 'mix n' match' of the rules of enforcement.

0 Building scheme is not relevant for the purposes of this essay.

1 [1933] Ch 611

2 Q&A Land Law 4th Ed. at 216-217

3 Smith, R.J., Property Law 4th Ed at 543

4 Rogers v. Hosegood [1900] 2 Ch 388 at *******

5 Federated Homes Ltd v. Mill Lodge Properties Ltd [1980] 1 WLR 594 (approved and affirmed in Whitgift Homes [2001] EWCA Civ 1732

6 cf Re Ballards Conveyance [1937] Ch 115 (principle would not apply due to Brantville being a small estate).

7 [1983] 3 All ER 503

8 (1848)2 Ph774 (41 ER 1143)

9 London County Council v. Allen [1914] 3 KB 642

20 Swift Investments v. Combined English Stores [1989] AC 632

21 sister section to S.78 LPA.

22 Murrells of Oxford v. Oxford United Football Club - ibid.

23 Land Registration Act 1925, Land Registration Act 2002

24 Land Charges Act 1972

25 J Sainsbury plc v. Enfield LBC [1989] 2 All ER 817

26 conveyance of 1988

27 as amended by Law of Property Act 1969

28 Chancery Amendment Act 1858 as amended by Supreme Court Act 1851 S.50 - equitable damages to be awarded in lieu of, or in addition to an equitable remedy.