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Covenants land law essay

covenants land law essay

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Covenants Land law Essay example


Author : kaylahsteuber



Pages 5 (1255 words)


Sarah is now the new owner of “Lushland” and she comes in to find that the covenant that had been initially signed by her father Leonard had been broken. Mary who made the covenant to use the land for strictly environmental friendly activities and agreed to plant and…

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The main concern in this case is whether or not Sarah is able to enforce the covenant to Oliver who will only own the land for a particular period which is 50 years. The answer is definitely no. Sarah does not have any legal ground to enforce the covenant to Oliver since the covenant between Leonard and Mary did not apply to Oliver2. However, Sarah has all the legal grounds to enforce some penalty to Mary for the bridge of covenant.
The reason is that Mary had not sold off the land to Oliver. Therefore, the covenant is still biding, what she did was to lease the land to Oliver, but not sell it to him. What this means is that the covenant is still binding and Mary has to take the responsibility to ensure that the restrictive covenant signed between her and Leonard is upheld. Therefore, the piece of advice to Sarah is to get hold of Mary and charge her with the responsibility3.
However, this should be noted that it is the covenantee who enforces the covenant to the covenanter. This will be in exception incase the deed was designed to provide that the covenanter is not in any way liable incase there is a breach in the covenant after he/she has sold the land. However, this is not applicable in this case because Mary had not sold the land
In the second case regarding Ned, the covenant they agreed on was one that denied him the right to use the plot for commercial use. However, when Ned sold the plot to Phillip he went ahead to use it for commercial use where he offered yoga and log cabin services. This is a little complex since Ned sold the land to Philip. It can even be more complex incase Ned cannot be easily traced4. Sarah may not be able to enforce the covenant on Philip since there was no any transaction between them. However, if Sarah can be able to reach Ned then she can be able to compel her to make the same agreement with Ned. In fact, it may be difficult for Sarah to ...

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covenants land law essay Covenants Easements Boundaries Essay - Free Law Essay.

In order to logically address the issues raised in this question, we will begin with a brief outline of the law relating to such covenants and then we will deal with each party/case individually.

In this context, a covenant is simply an agreement contained in a deed normally made between one party selling a portion of their land and the other party purchasing it. These covenants are used as a form of private planning control by the vendor to ensure that they can ‘shape' the uses to which the land they are selling is put to e.g. a covenant may dictate that no building above three floors can be erected on the servient land so as to preserve the view of the retained dominant lands. Most difficulties arise when such lands have been sold on to different owners and the owner of the dominant land seeks to enforce a covenant against the servient land. This is the case in the question posed.

When addressing issues relating to enforcing covenants, it is essential to first identify who the original covenantee was i.

Unless both of these can be established, then May will not be able to obtain relief from the courts . This is also known as the benefit and burden ‘running' with the land and as such it is normal to examine the passing of the benefit and burden separately to ascertain enforceability. Now let's examine each case.

Denise's Case

May is attempting to enforce the covenant against Denise which prohibits her operating a business from her plot. The first and most critical step is to decide if a covenant is either negative or positive . The simple test to apply to ascertain which type of covenant you are dealing with is to ask if it compels you to do something rather than not do something. The usual acid-test is from Haywood v Brunswick and asks whether it requires one to spend money to comply with the covenant. If it does, then it is a positive covenant. In this case, the covenant does not require the expenditure of money it just restricts the use to which the premises can be put and as such is a negative covenant .

It has been long established at law that the burden of covenants cannot run with land , see Austerberrv V Corp. of Oldham and recently confirmed in Rhone v Stephens . The reason for this is, as outlined above, that the law does not like to see cumulative and excessive burdens imposed on land. If these were allowed, then over the centuries the uses of some land could become so restrictive as to make it worthless.

However, equity stepped in to ameliorate such a strict embargo and in Tulk v Moxhay it was established that in certain cases the burden will be allowed to run with the land once certain requirements are met. The requirements are that (i) the covenant must be negative rather than positive. This condition has been met. (ii) The covenant must confer a benefit to an identifiable dominant plot and not to a person. This requirement is broad but essentially requires that the original covenantee retained land which benefited from the covenant at the date of the covenant.

Furthermore, that the covenant ‘touches and concerns land'.

In this case, Lola retained the dominant land and this was passed to May. Also, the covenant does grant a benefit to the dominant land as the absence of any commercial activities on the servient land reduces noise, traffic, etc . And even though we are not told that the two plots are adjacent (although it is implied because of the access road), this would not matter as immediate adjacency is not absolute necessity see Kelly v Barrett . (iii) The original parties must have intended that the burden runs with the land. Equity requires that the parties intended the burden to run with successors in title. We are not told this exactly just that it was for the “benefit of the retained land” which should suffice but by virtue of LPA 1925 S.79, the covenantor is also deemed to have intended the burden to run unless specifically excluded . (iv) Equity requires notice to enforce covenants. The essence of Tulk v Moxhay was that the purchaser had knowledge of the covenant involved and it was unconscionable for him to then breach it. The covenant would then have been discovered by Denise's solicitor during her purchase and as such she would have notice of the covenant. If, for whatever reason, it was not registered then no notice exists and the covenants would be unenforceable. We will assume she had notice and so as such we can state that the burden will have passed to Denise.

Assuming we have proved that the burden runs in equity, we must also then prove that the benefit also runs with in equity. We cannot mix equity and law to achieve our result, both must run in equity. The simplest way that May can acquire the rights to the benefit of the covenants and thus enforcement rights is by “express annexation” i.e. the covenant stating that the covenant is for the benefit of the estate as per the ruling in Rogers V Hosegood . In this case, we are clearly told that the covenant was “for the benefit of the land retained” so we can assume the benefit has also passed in equity. Even if it was not expressly annexed in Federated Homes v Mill Lodge, the courts have held that once the covenant can be shown to be for the benefit of the covenantee lands, there will be an assumption of annexation.

In theory, the remedies available to May would be the equitable remedy of an injunction or damages in lieu of an injunction as per s.50 of the Supreme Court Act 1981. Considering that the guesthouse is already operating, the court would look at a number of factors. If as in Shelfer v City of London , it was held that injunctive relief was excessively detrimental to Denise, then the court might not be willing to issue a mandatory injunction ordering Denise to close her business. This would be so especially if May had knowledge that the guesthouse was going to be opening and did nothing until it was opened. Equity abhors delay. Furthermore, a small guesthouse with occasional guests might be considered a mild transgression of the covenant and the court may order damages to the level of what Denise might have had to pay May to agree to lift the covenanted restriction as per Jaggard v Sawyer . The courts will not simply issues injunctions upon request – equitable remedies are not automatic rights. To conclude, May can likely enforce the covenant but whether she can shut down the guesthouse or just get minor damages would be decided by the court based on the facts.


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