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Freehold Covenants - Coggle Diagram
Freehold Covenants
As between original parties
Privity of contract applies
As between successors in title
At law
Contracts (Rights of Third Parties) Act 1999
By express assignment
At common law
The BURDEN does NOT pass at common law
Continuing liability
Express
Implied
s. 79(1) LPA 1925
UNLESS:
A commonhold development scheme
Restriction (s. 40 LRA 2002)
A chain of indemnity covenants
The doctrine in Halsall v Brizell
"Mutual benefit and burden": covenantee grants to the Covenanter a benefit in the nature of an easement and imposes a connected burden
Clear link between burden and benefit
Genuine choice
Same transaction
The grant of a long lease
The BENEFIT of the covenant will pass, provided:
Express assignment
s. 136 LPA 1925
Implied assignment
Intention that the benefit should run
Original covenantee must have a legal estate in the dominant land
Covenant must touch and concern the land
Successor covenantee must hold a legal estate in the dominant land
In equity
The BURDEN of the covenant will pass, provided (Tulk v Moxhay):
The covenant accommodates the dominant tenement
The covenant must touch and concern the land
The dominant land and the servant land must be in proximity
The covenantee and successor covenantee must hold an interest in land at the time of creation and enforcement
The parties intended that the burden should pass
The covenant is restrictive
The person against whom the covenant is being enforced has notice
Unregistered land
Pre Jan 1926
Under the doctrine of notice
Post Jan 1926
By registration of a class D(II) land charge
Registered land
By Notice on the Charges Register
The BENEFIT of the covenant may pass through:
Covenant must touch and concern the dominant land
By one of the methods in Renals v Cowlishaw
A building scheme
Annexation, which may be:
Implied
Statutory
Express
Assignment
Remedies for breach
Injunction
Mandatory
Prohibitory
Specific performance
Damages in lieu of injunctions
Removal of freehold covenants
Implied agreement
Upper Tribunal Lands Chamber
s. 84(1) LPA 1925
Restrictive covenants
Express discharge