Restrictive Covenants

Common Law

In Equity

Discharge of Covenants

Definition of a Covenant

Means by which a landowner can attempt to control the use of land after it has passed into the ownership of others

Interest can exist in equity one and land must be registered for protection as a notice to the Land Registry

The covenant is created by a deed between the covenant or (who assumes the burden) and the covenantee (who takes the benefit under the covenant)

Only the original parties are bound under the rule of privity of contract. The burden cannot pass to a third party under law.

Restrictive covenants move with the land and can be enforced by successors in title

Transmission of the Benefit -the benefit of the covenant will pass at common law when the following conditions are satisfied:

Transmission of the Burden- the burden does not pass with the land.

The Covenantee must have held the legal estate

The covenant must have been intended to benefit subsequent owners of the land

The covenant must touch and concern the land

The claimant must derive his title from the original covenantee

It may be possible to rely on the rule in Halsall v Brizell [1957] or a chain of covenants

Tulk v Moxhay [1848]- equity recognises a restrictive covenant if the following conditions are met:

Transmission of the Benefit

There must be a dominant and servient tenement

The covenant must benefit the dominant tenement

The covenant must be restrictive in nature

The covenant must be intended to pass with the land S.79 LPA 1925

Statutory annexation (S.78 LPA 1925)

Assignment- claimant must show that the benefit of the covenant has been assigned to him by an unbroken chain of assignments

Express annexation

Building Scheme (Elliston v Reacher [1908]) laid down four conditions to be satisfied in order for there to be a building scheme:

The seller must have set out the estate in lots and imposed restrictions prior to the sale consistent with some general scheme of development

The seller must have intended that the restrictions were to be for the mutual benefit of all the purchasers of the various lots of land

The purchasers must have derived title from a common owner

The purchasers of their predecessors in title must have bought their property on the basis that the covenants were to be mutually enforceable by the owners of all the other lots within the scheme

Transmission of the Burden

Successors in title will be bound by the burden of he covenant if it compliments with the Tulk conditions and is protected by an entry of a notice on the Register in the case of registered land or a land charge in the case of unregistered land

Restrictive covenant cannot be enforced unless both the benefit and the burden have been made to run with the land.

Remedies where covenants are enforceable but not followed: (1) damages (2) mandatory injunction

A covenant can continue to affect land in perpetuity unless the parties affected discharge the obligation by deed

LPA 1925 gives the Upper Tribunal (Lands Chamber) the power, on application to discharge or modify the covenant

Covenant can be extinguished automatically should the burdened and benefiting land come into common ownership and possession

Other methods of discharge include deed of release (or variation) and merger