Freehold CovenantsWatch this thread
The scenario that I am trying to answer is this (well I've kinda power phrased it)
H is a registered freehold owner of a property with a large garden. H sold a plot of land to A and there are three covenants. A then sells the plot to R. H sells his remaining property to L. R has breached the covenants and L wants some advice.
So, this is how I have structured the answer:
- Passing the burden - here I have said how the common law will not allow the benefits or burdens of covenants to pass however under Tulk v Moxhay they will under certain conditions. I have also talked about the way the positive covenants can be enforced indirectly under the common law
- Passing the benefit - here I'm going to talk about how the benefit of the covenants will pass to L - successor of the original covenantee. do I also talk about the way L has to show that the benefits of the covenants have passed to her through equity because the burden of the covenants have passed to R in equity.
- Then remedies i think.
i don't know if this is right. Can someone please help me? I'm not asking anyone to give me the answer but I just need a structure.
Thanks to whoever answers.
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Define covenant; establish who the covenantor and the covenantee is in the problem. If the three covenants set out by H are positive or negative (restrictive covenants) and briefly point out the key problems you will expand on in the scenario.
Main body –
Talk about the general rules of law in covenants:
Enforcement at common law:
Benefit of the covenant can run but the burden cannot. L’S BENEFIT WILL RUN
Contract rights of third parties act 1999 - section 1 enables a person who is not a party to a contract to take the benefit of a contractual term, which purports to confer a benefit on him. As R AND L ARENT ORIGINAL PARTIES TO THE CONTRACT THEY CANNOT BE SUBJECT TO THE COVENANT.
The running of benefit at law smith v snipes farm, P & A swift investments 1989 (EXPLAIN HOW THESE CASES RELATE)
section 79 (1) LPA – The original covenantor being liable for any breaches by successors in title
Enforcement in equity:
Certain negative covenants can run in land… Tulk v Moxhay 4 requirements: the covenant must be negative/restrictive, it must touch and concern the dominant land, covenant must be made with a intent to burden the servient land , covenant must be made to benefit the dominant land retained by the covenantee.
Other ways benefits can run in equity through… for L’s BURDEN TO RUN WAS ANY OF THESE METHODS USED? annexation (attachment of benefit to land), assignment (attaches benefit to person), scheme of development(local laws inside that land made).
- The remedies available for R/ L ,
- damages awarded by court, (SHELFER V CITY OF LONDON (1895) DAMAGES AWARDED TO L FOR BREACHES OF THOSE COVENANTS IF THEY CAN PROVE THE BENEFIT RAN?
- injunctions, (CHATSWORTH ESTATES 1931)
- discharge of covenant s.28 LPA MAYBE R COULD DISCHARGE OF THE COVENANT IF IT DOESN’T SEEM REASONABLE FOR THE PURPOSE.
In 1995 Silverton Plc purchased two acres of land in
York. Their title to the land was duly registered and they developed and built
an estate of 20 houses on it. The plan for the development showed the individual plots on
either side of a single roadway (Smith Road”) on the estate, which Silverton
insisted should remain a private road and not become a public highway.
The transfers to each of the 20 buyers were all in a standard form: Silverton granted
each buyer a right of way over Smith Road and covenanted to make up and maintain
the road. In turn, each buyer covenanted for the benefit of everyone on the estate (a) to pay
each year to Silverton one twentieth part of the annual costs incurred by Silverton in
maintaining the road (b) not to park any motor vehicle on the road and not to park any
caravans or motorhomes on the driveways of the property.
Mr Flint purchased 16 Smith Road in September 1996 and his title to the property
was registered shortly afterwards. Mr Flint sold his house last year to Patrick Jones
who is now the registered proprietor of the property. Patrick consistently parks his caravan
on the drive in front of his house and leaves his car on the road outside. His neighbour,
Matt James at number 18, frequently complains about this but Patrick refuses to move
Mrs Karla purchased 18 Smith Road in July 1997 and registered her title to the
property shortly afterwards. She sold her house three years ago to Matt James, who
owns and drives a small sports car, which he frequently drives at high speed along the road.
However, Matt has persistently refused to pay anything towards the maintenance of the
The last property on the development was sold by Silverton in 1997. The only land now
retained by Silverton is the private road through the development.