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