Land Law Coursework Covenants

A freehold covenant is a promise or an obligation made by a land owner to another regarding the use of the land. It is a type of contract within the doctrine of privity and usually the rights and obligations it creates normally binds those that are contracted to it and no one else. A covenant is usually made by deed. A “restrictive covenant” to which the doctrine of (Tulk v Moxhay)1 applies it does not need to be created by a deed It can include “a mere agreement and no covenant”.

They are used to preserve some rights of enjoyment or too keep a building or a particular group of buildings to be preserved and kept in a particular way for example no erected satellite dishes or fences around the front of the building.

The original covenantee can always enforce the covenant against the covenanter as a matter of contract and so therefore enjoys its benefit. The covenanter has the burden of the covenant meaning he is bound by it and must a bide to it. For example A sells part of his land to B who promises not to use the land for business or trade purposes.

Moreover the class of the original covenantees can be extended to people who were not in the original deed under s.56(1) Law Of Property Act 19252. The Contracts (Rights of Third Parties) Act 1999 enables the benefit of a contract to be given to those who are not parties to it.3

Those who are to benefit from the covenant in today’s law can now be referred to by some generic description a description of class for example the 'owners of Hudson' however they must be in existence when the covenant is made and they must also be identifiable moreover the covenant must clearly be intended to be made with them as well. The cases of (White v Bijou Mansions) (1937)4 and (Amsprop Trading ...

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...is not a personal covenant it must also be done in writing and notice must be given to the covenantor under s.136 LPA 19259.

The burden of a covenant does not pass at common law therefore meaning successors in title cannot enforce it, the cases of (Austerberry v Corporation of Oldham) (1885)10 and (Rhone v Stephens) (1994)11 which confirmed the common law rule that the burden of covenants does not pass at common law. In practice, positive covenants are dealt with under the common law rules and restrictive covenants under the equitable rules.

In Equity according to (Renals v Colishaw) (1878)12 the benefit of a covenant will pass if the covenant touches and concerns land of the covanantee; and the benefit of the covenant was; annexed to the land of the covenantee; or expressly assigned to the successor in title; or the land in question is part of a building scheme.