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24 Cards in this Set
- Front
- Back
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Annexation-
LPA 1925 s.78 operates to annex to the land the benefit of any covenant which touches and concerns the land in the absence of any contrary intention. |
Federated Homes Ltd v Mill Lodge Properties Ltd [1980]
Provided the conditions under s 78 LPA 1925 are satisfied, annexation of the benefit of a covenant to the dominant land is automatic. M owned 3 plots...red green and blue ...sold one to D agrred no more than 300 built. P buys other 2 . D builds more.. P gets green by unbroken chain of assignments from the original convenantee. Got green right away but also argued actionable against D for red land under ss 62 0r 78 of LPA 1925 because it touched and concerned the land |
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Automatic statutory annexation by virtue of s 78 LPA 1925 and the decision in Federated Homes Ltd v Mill Lodge Properties Ltd [1980] may be expressly excluded from operating.
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1934 house sold subject to covenant no more one house to be built on lot. would not enure for the benefit of any owner or successor purchaser unless expressly assigned. injunction to build not allowed. building went ahead. |
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Passing of the burden in equity
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Tulk v Moxhay (1848)
Leicester Square Burden will run in equity, provided the following requirements are satisfied: 1- the covenant is negative in nature 2- it protects land retained by the covenantee, and 3- it was intended to run with the land. |
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Doctrine of Halsall v Brizell according to which a person who claims the benefit of a conveyance (e.g. the right to use a road or drains) must submit to its burden (e.g. the corresponding obligation to contribute to the cost of maintenance).
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Halsall v Brizell [1957]
Where you wish to take the benefit of a deed, you must also submit to any corresponding burden that deed imposes. liverpool 40 acres 174 building plots...held roads, sewers,promonade, seawall..., purchases covanted for heir executers and themselves to pay positive covenant of these costs to trust held by the vendor...one later on sold part of property to others ...all chipped in but others said neede more from the multi building plot. Can't have services without being subject to obligations. |
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To enforce a covenant, you must have a dominant land capable of benefiting from that covenant.
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LCC v Allen
buys land from city with convenant not to build... city did not own adjoining... new buyer (D) had notice but built anyway...city loses because did not own land that can benefit from the covenant |
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P&A Swift Investments v Combined English Stores Group plc [1989]
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Benefit of a covenant may pass at common law where four requirements are met. A covenant is deemed to touch and concern the dominant land where any holder of that land would benefit, not just the original covenantee personally.
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Though the original covenantor generally remains liable, the burden of a covenant cannot pass at law so as to become directly enforceable against his successors in title.
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Austerberry v Oldham Corporation (1885)
Court of Appeal applied the contractual rule that only a party to an agreement can be burdened by it. This was confirmed by the House of Lords in Rhone v Stephens [1994] |
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Covenant must be negative (restrictive) in nature (not positive)
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Rhone v Stephens
covenant was to maintain a roof in good condition, which is positive in nature, and so the burden did not pass to a buyer of the house, rendering the covenant unenforceable after sale. |
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Covenant must protect land retained by the covenantee
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London County Council v Allen
To enforce a covenant, you must have a dominant land capable of benefiting from that covenant. buys land from city with convenant not to build... city did not own adjoining... new buyer (D) had notice but built anyway...city loses because did not own land that can benefit from the covenant |
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Covenant must have been intended to run with the covenantor’s land
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Morrells of Oxford Ltd v Oxford United Football Club
Person sold part of his land as a public house and covenanted not to permit any competing business on his retained land, this covenant was personal in nature and did not bind successors in title. |
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Passing of the benefit at law
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Ecclesiastical Commissioners for England’s Conveyance
Effect of LPA 1925 s.56; any person identifiable at the time the deed is executed, and intended to have the benefit of a covenant is an original covenantee, whether or not he executed the deed containing the covenant. |
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In law benefit will run with land if the covenant touches and concerns the land of the
covenantee |
Smith and Snipes Hall Farm Ltd v River Douglas Catchment
Board in the case of a post-1925 covenant it is not necessary to show that the person seeking to enforce the covenant has the same legal estate as the original covenantee |
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Passing of benefit in equity
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Not only must the covenant touch and concern the land of the covenantee,
but the claimant must show that he has acquired the benefit of the covenant in one of the three ways prescribed by equity: annexation, assignment or scheme of development. |
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No effective annexation if the land is larger than can reasonably be benefited.
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Wrotham Park Estate
a covenant over 47 acres was held to be annexed to the whole of a 4,000 acre legal estate. It appears from that case that where there are different opinions as to whether the whole estate benefits from a covenant, the covenant will apply to the whole land. |
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Even if there has been no effective annexation, the claimant may be able to show that the benefit of the covenant has been expressly assigned to him.
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Roake v Chadha
Where there was a covenant not to build more than one house per plot on a piece of land, and another clause in the conveyance provided that the benefit of the covenant would not pass unless it was expressly assigned. The Court held that, despite the decision in Federated Homes, s.78 could not operate to pass the benefit of the covenant to a buyer, since the original parties had expressed a contrary intention. |
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3 key points about assignment re:
passing the benefit under equity. |
1-covenant must have been taken to protect ascertainable land of the covenantee and the benefit must have been assigned to the claimant at the same time as the land. Does not nescessarily have to have exact wording for land identification....see Newton Abbot Co-operative Society Ltd v Williamson and Treadgold Ltd,
2- assignment of a benefit does not operate to annex it to the land.assignment of a benefit does not operate to annex it to the land. A chain of assignments from one owner to another, on the same terms, is necessary: see Re Pinewood Estate, Farnborough 3-Equity allows the benefit to be assigned with any part of the benefited land, so that a covenant annexed to the whole of a piece of dominant land could be assigned on the sale of part of that land; see Stilwell v Blackman |
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Person who is not a party to a contract may enforce its terms if either the contract expressly provides
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Contracts (Rights of Third Parties) Act 1999 s.1
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What case lays down the conditions of a schemes of development?
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Elliston v Reacher
1- There was originally a single seller of all the land within the scheme. 2- The plots of land were laid out in advance. 3- Mutual restrictions were established by the original seller, for mutual benefit of all the buyers of plots. 4- Purchaser of each and every plot knew of the mutually binding nature of the covenants. 5- Further condition was added in Reid v Bickerstaff to the effect that the area of the scheme must be clearly defined |
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How have conditions changed recently regarding rules for development schemes?
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In recent years, however, the courts have taken a much more relaxed approach
to these conditions (e.g. those requiring a common vendor and pre-sale lotting) and have tended merely to insist on the clear definition of the scheme and on evidence that the original vendor and the original purchasers intended that all purchasers should be mutually bound by, and mutually entitled to enforce, a defined set of restrictions. |
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When will courts refuse to enforce a restrictive covenant?
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In Chatsworth Estates Co. v Fewell
Argued that the benefit of a covenant had been ‘abandoned’ when the covenantees had done nothing about breaches by others in the neighbourhood, proceeding only against the defendant (on the facts the court found that there had been no abandonment). Shaw v Applegate Covenantor in breach of covenant had been ‘lulled into a false sense of security’ by the covenantee’s delay in enforcing the covenant, and so an injunction was refused and damages awarded instead for the breach. In certain circumstances the courts may refuse to enforce a restrictive covenant (e.g. where the person entitled to enforce it has remained inactive in the face of open breaches or where the character of the neighbourhood has changed significantly |
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What is the criteria to be used under LPA 1925 s.84(1) that confers on the Lands Tribunal a discretionary power to modify
or discharge a restrictive covenant with or without compensation? |
1- It should be deemed obsolete due to changes in the neighbourhood.
2- It impedes a reasonable use of the land, provided that money compensation is adequate and either the covenant ‘provides no practical benefits of substantial benefit or advantage’ or it is against the public interest 3- The parties agree expressly or impliedly. 4- It will not injure anyone entitled to the benefit |
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Requirement of commonhold
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1-The commonhold will be run according to a certificate of incorporation,
memorandum and articles of association of the commonhold association (s.2 of Schedule 1) 2- the commonhold association’s community statement (s.31) which contains the reciprocal obligations related to the land and the terms of collective management of the development. 3- The title must be registered as an estate in commonhold land (s.1(1)). 4- There must be at least two units within the scheme (ss.40, 66). A commonhold may consist of flats, houses, shops, etc.; it may be residential or commercial. 5- commonhold association can wind itself up at any time by passing a unanimous resolution and applying for termination (s.44). If only 80% of members vote in favour of termination then a court application is necessary (s.45). |
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Why is commonhold better than if property held in leasehold?
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1- no risk of loss of the land due to non-payment of service charges.
2- Each commonhold unit is freely transferable but long leases cannot be granted 3- subdivision is not permitted 4- Transfer of a unit automatically passes the burdens of the covenants to the buyer |
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Who manages the property in commonhold?
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The commonhold association which manages the common parts of the development will be a private company whose members will be the owners of the units. The association will have legal title to the common parts such as staircases, gardens,
parking areas and hallways. |
