Benefit of Freehold Covenants

    • Thread Starter

    I've taken a quick look at this essay question, I've got some basic points, but I was wondering if anyone actually held an opinion on this, or even just had some useful arguments?

    Are the rules which govern when the benefit of a freehold covenant may be annexed to, and 'run with' the covenantee's land, satisfactory?

    Explain the rules regarding the passing of the benefit of freehold covenants, briefly:
    must 'touch and concern' the land, so it must be for the benefit of the land itself (P & A Swift v Combined English Stores).
    intention that it should run with the estate owned by the covenantee at the point of covenant (Smith and Snipes v River Douglas).
    The covenantee must have a legal interest.

    Then perhaps suggest that the rules regarding annexation are complex and difficult.

    The courts’ approach to the requirement that the covenant must relate to/benefit/touch and concern the covenantee’s land; the role of intention in annexation; the identification of the benefited land, and with it, who can enforce the covenant?

    I don't know whether it'd be going too off topic, but you might want to examine the different types of annexation: for example, the structure concerning 'express' annexation is far more satisfactory in terms of favouring the covenantor (in absence of contrary intention, it will be assumed that annexation attaches the benefit - Federated Homes v Mill Lodge) then 'implied', where the 'burden of proof' (so to speak) is reversed, and it will only be when there is an extremely clear intention implicit in the circumstances that it is granted (Marten v Flight Refuelling) so the balance is tipped in favour of the covenantee (in that the benefit is less likely to be given). Of course, remember that under s.78(1) LPA most covenants will now be annexed automatically to land, even where there are no express words, so cases where this fails will be few.

    Don't know if that helps at this a random essay question you've been sat, or one you're trying to practice from an exam paper? If it's the former, then it probably would help to mention the 'old law' before the legislation in a bit more detail then if this is a practice exam question, whereby you might just want to say that in the past it was slightly harder to prove annexation if it wasn't expressly stated, but this hurdle has been overcome by the 'new' statutory provisions.
    • Thread Starter

    I'm just practising a past exam question, thanks, you've been very helpful.
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