Land Law - Freehold Covenants

Freehold covenants involve someone who is making a promise and suffers a burden (covenantor) and another person who receives the benefit of that promise (covenantee).
When the original owners move on then questions arise as to whether the original burden or benefit can also run with the land. This means having to explore whether the land transfer happens in common law or equity.
In common law the starting point is privity of contract whereby a contract between two people cannot bind individuals who are not party to that contract. However while the courts have held that the burden does not pass (Austerberry v Corporation of Oldham [1885]) it is certainly possible for the benefit to do so when it touches and concerns the land (Smith & Snipes Hall Farm Ltd v River Douglas Catchment Board [1947]).
In equity the case of Tulk v Moxhay [1843] held that the burden
can pass as the purchaser will have notice. To prevent this principle becoming too broad in nature a distinction is made between positive and negative covenants. For positive covenants the covenantor has to actively do something (Hayward v Brunswick Permanent Building Society [1881]) while for negative covenants there is an obligation to refrain from doing something as in Tulk v Moxhay [1843].
The burden of a positive covenant cannot pass in common law and only passes in equity where there are reciprocal burdens and benefits as in Halsall v Brizell [1957]. However this was restricted by Lord Templeman in Rhone v Stephens [1994] where it was held that this principle would not be effective where there is no choice in accepting the burden. The Law Commission has recently suggested that this are should be replace by 'land obligations' in an extensive review of the subject.
Meanwhile for the burden to pass in equity a number of (rather straight forward) requirements must be met:
the covenant must touch and concern the land
proximity (the dominant land must be able to benefit) - Kelly v Barrett [1924]
intention for the burden to run (presumed by s. 79 Law of Property Act 1925
the covenant must be registered
unregistered land - class D(ii) land charge
registered land - notice under ss. 32 & 33 Land Registration Act 2002
When looking at the benefit of a negative covenant running in equity there are three circumstances to consider:
Annexation - where the benefit is permanently attached to the land. For this purpose Federated Homes v Mill Lodge Properties Ltd [1980] interpreted s. 79 LPA25 so that if the covenant touched the land and the dominant land was identified then annexation is automatic.
Assignment - is very similar to annexation and attaches a covenant to the land at a later date. However the conveyance and assignment must be simultaneous (Re Union of London and Smith’s Conveyance [1933]).
Schemes of development - such as housing estates where there are reciprocal enforcement of obligations the area is clearly identified.
Despite privity of contract it is also important to consider the rights of third parties. s. 56 LPA25 enables a person not party to a covenant to sue upon it where the covenant purports to be made with that person (Lyus v Prowsa Developments Ltd [1982]) and the covenantee is clearly identifiable (Re Ecclesiastical Commissioners for England’s Conveyance [1936]).
In certain circumstances unidentified third parties can sue if a covenant was made for their benefit as per the Contracts (Rights of Third Parties) Act 1999.
For breach of a covenant a number of remedies are available:
Quia timet injunction
Injunction to prevent continued breach
Mandatory injunction
Damages in lieu of an injunction where the requirements of Shelfer v City of London Electric Lighting Co. [1895] are met.
Covenants can be modified or discharged by way of applying the Upper Tribunal (Lands Chamber) under one of the four grounds in s. 84 Law of Property Act 1925:
the covenant has become obsolete
continued enforcement of the covenant is
obtrusive to a public/private use of land
of no practical benefit/contrary to the public interest
compensable by money
all those entitled to the benefit consent to the discharge
the discharge confers no injury on the person benefiting

[@alimahtemilola9464]

I usually do not leave comments on KZbin but this deserves a comment. I legit have a Land Law exam in two days and this is one topic I am finding difficult. Then, BOOM you post this video! THANK YOU!

[@marcuscleaver]

I know it really is such a horrible topic tbh :(

[@2Worlds_and_InBetween]

say a yes

[@actingtrainingeducationins4124]

I strongly argue that your lecture is far more simple and easy as well as helpful than professor Alastair Hudson, thanks for it.

[@mollysurtees3835]

You have been a saving grace for second years this year. So thank you! My exam is tomorrow and you posted this today almost like a miracle. Wish it had been sooner as our exam is tomorrow though.

[@marcuscleaver]

Just in time then! Good luck tomorrow :)

[@mollysurtees3835]

Thank you!

[@umaimaaltaf5500]

Can you give me notes for landlaw if you have any :P

[@teslanikola8558]

Molly Surtees mine is on Monday 😅😭😭😭

[@heyitsconnor1]

Brilliant, honestly the best law lecturer I’ve had should be paying you my student fees!

[@MaameSerwaT]

Thank you very much. You've actually demystify this topic for me, and I'm grateful. It's been a struggle all along. Thanks again

[@NoreenBeauty]

I am so thankful that you make videos, which actively help me understand the topic. Thank you so much for your hard work and explaining this topic in detail. Great Job, I have learned so much from your videos!!!

[@onisimionut9220]

Great video, as always! Thank you for your videos, they are truly useful!

[@syd-elena7475]

Marcus still saving lives. Thank you so much.

[@beverley-roseblackmagic5879]

I would like to say that I don't usually look at you-tube videos for my revision, but having missed all my classes and not getting the support to understand, even with the module information they provided, but you have broken done the elements involved quite precise that I was able to understand Freehold Covenant. Thank you sooooooooo much I really appreciate your video.

[@EG-ld8ot]

You just helped me to finally summarise and finish my assignments for next week Marcus!! THANK YOUUUU! I did so much research but usually struggle to wrap it all up! You never disappoint! 😘

[@missfarida6050]

wow you just saved my life . THANK YOU SO MUCH

[@rccglca]

Thanks so much. Very helpful and clearly delivered

[@dragonballs2173]

Thank you so much for uploading this . I have a land law exam in two days

[@michaelvlogs7510]

thank you for this lesson. going to help me massively with my problem question

[@MegaEmzz]

You have no idea how happy you have made me posting this video and I can't thank you enough for it! After almost giving up on this topic I accidentally came across your video and I can't be more grateful! Very clearly and easily structured and you've summarised everything so smoothly in 17mins that senior lecturers couldn't do in 2 hours! Looking forward to the rest of your videos please keep up the good work :)

[@marcuscleaver]

+MegaEmzz What a lovely comment, thank you so much for getting in touch! :)

[@alousisballah9078]

Wow! Thank you so much for this video. Very helpful

[@seherrajput305]

This lecture has been helpful. Thank you. I hope you upload more of Land topics.

[@tomisin3754]

I am trying to by a house and researching the things I should avoid. This has been very helpful

[@eunicejacob6142]

Thank you very much for your assistance in explaining these difficulties in land law. I honestly say I understand you more than my law tutors. The lecture am getting is worthless for the £9.250, am paying. And when one asked questions the reply is, you should go and read it in your module guide everything is there for you to read. Its ashamed really, most tutors are less impressive and lacks confident to teach.

[@yoursisesthermeya]

Wow I agree.....they always refer you to the module work but dont take the time to sit you down an explain. I have to book an appointment lol

[@syedjawadabbas9538]

Thank you soo much brother ... God bless u and stay blessed .....

[@urmilaapadmanathan6666]

You my friend, are a lifesaver!!!

[@LaxmiDevi-gv9kn]

thank you so much!!!!! this helped with my assignment!!!

[@TheShannon9696]

This was so helpful thank you!!!

[@phillidahpotera8760]

Well articulated thank you very much

[@kundaigogoma9420]

could you please do one on adverse possession, leases and co-ownership

[@cooljay3112]

Thank you so much for your videos they are really helpful If you could do any more videos on Land law topics that would be great !

[@vtrndre3728]

This guys is an absolute legend

[@MarkPummell133]

as always Marcus; you shine a torch in the darkest tunnels!!! haha

[@mrclarke3554]

Marcus, this is very good!

[@sanahahmed8666]

I rate you 10/10 for this

[@marcuscleaver]

Thank you!! :)

[@robertkilminster3402]

Really helpful Marcus. Thank you

[@alexandrabathie-neale113]

Thank you for this video!!!

[@naziaakhtar2084]

Easy to understand, thank you.

[@paigebarton9192]

Thank you this was very helpful :)

[@malleyne1981]

Great great video!!! I have property law exam on June 2nd, your timing is impeccable. Any more topics u can cover such as cownership, mortgages, easements will be greatly appreciated. Love your videos

[@yukipoon721]

malleyne1981 same here! Hopefully there's a video of easement

[@JustAnotherThisDJ]

Brilliant presentation thanks a lot

[@chimdiibekwe7670]

Thank you 🙏🏾

[@fareengul5876]

Excellent!!!

[@mariaumbres4424]

Really helpful, thank you!!

[@Locoinstead]

Omg if you could do a video on co-ownership/severance, before my exam on Friday, Id be the happiest bunny alive

[@phillidahpotera8760]

Thank you

[@tolsfeso5568]

Thanks so much for this video! really helped, please would you be able to do a video on proprietary estoppel ASAP!!!!!!!!!!

[@Lahorehacks]

Thanks alot man!

[@user-nb8no7qg5b]

Hi Marcus, thanks so much for all your videos. Would you consider making a video on leases and leasehold covenants - specifically, the differences before and after the 1995 Act?

[@tee.x3469]

Thank you! very helpful :)

[@yarncloud]

Thank you Marcus for all of your dedication and amazing videos. I would just like to pint out one typo in the slides. The relevant case was actually Haywood v Brunswick Permanent Benefit Building Society (1881) not Hayward. Thank you and have a fantastic day.

[@freshleap]

Thank u very much

[@annedymond4051]

Oh my goodness thank you very much for this! You have literally saved me from my exam in less than 2 days. I've been struggling with this topic for months. Thank you, Thank you, Thank you!

[@TashNzekwe]

I love your videos. Can you do a video on determining a lease vs a license ?

[@FazlulKarimzpm]

Well explained

[@beckyliew2656]

I love you sir

[@ganadora69]

Dear Marcus, thanks so much for your help. I am qualified in two continental law jurisdictions and I have difficulties understanding Lease in general. I do not get to understand it properly. If you have some time, would you make a video regarding this topic? You put things so clearly. Thanks a lot in any case.

[@yauyau3322]

thanks

[@marialord6635]

Lifesaver. Boom.

[@MarkSmith-bm4rt]

very very good

[@2Worlds_and_InBetween]

cheers

[@user-em4ox7rw8g]

Wish easement video was available

[@hsachdev1451]

Can we get a Co-Ownership video??

[@yiti5507]

I interest buying 5 acre land. 999 years lease. Restrictive covenants , not to carry out any developments. But I think it will worth to build two houses. Because right side and left side are residential houses. Can you give me a advice if It is worth to buy this land with a negative covenants. Seem My solicitor doesn’t know those covenants very well. Thanks

[@davidbenaim7276]

Hi! Any chance you have these slides available for download? They’re incredibly clear and helpful! Thanks so much

[@ladymarwa2539]

I am currently buying a Greenbelt agriculture land with restrictive covenant. There is remains of old building that goes back to 1800 indicate there was a building there. Can I by pass the covenant by getting it removed and get the land changed to residential to build?

[@acheamfournanakwame1410]

So umm Marcus. If say you're to answer a problem question under this area, what would be the general issues you'd raise in attempting the question

[@sofiasilice8977]

Can you recommend any good book that defines covenantor and covenantee as well as the concept of covenants in general?

[@marcuscleaver]

Gray and Gray is the land law book that I use.

[@vinsukakannangara5389]

This man is a God!

[@jackiebarley4093]

Hi, I am not a student but have a problem with an old covenant. I am a director of a residents management company and when the builder bought the land to build 9 properties on a farm , the landowner set up a covenant in 1997 that stated that the company would have to pay a proportion of the maintenance of the lane. This was set as 25% . At the time this was probably a fair proportion. Since then there has been a huge increase in residential and businesses using the lane and this percentage is not now a fair proportion. As the original builder has gone out of business and the vendors have died and the land is now owned by trustees, is it possible to remove this covenant from the Title Deeds.

[@ceciliaaviles3130]

Hello, do you have a video on leases?

[@laurenlewis8674]

I thought the burden of a positive covenant couldn’t pass in equity? Only a negative burden?

[@douglaslsp]

the benefit of a restrictive covenant shouldn't automatically transfer to the all successor covenentor under assignment isn't it, base on the case of Sugarman v. Porter ?

[@ladymarwa2539]

How does that work?

[@sademcqueen7301]

Marcus I trust that all is well with you. While you have provided great help I find myself stuck in Mortgages can you assist me with doing a video on this?

[@londontown3052]

Hi I have question regarding a covenant, not an exam question, but an actual covenant on my deed, it is a bit confusing and I was wondering if someone here could help me, just to give a brief flavour of it, it involves the used of shared footpath.. if you need any further details and exactly what the dispute is please let me know

[@londontown3052]

Ideally I want to know if I can build a boundary wall on my side of the land and on my side of the footpath, or can the covenant stop me from doing it? As far I understand fro mr he covenant, to me it translates as I must allow me neighbour to walk on his side of the path and he must allow me to walk on my portion of the path. I.e both of us must give each other access to their own portion. Note each portion is on our respective lands, I.e my portion is not on my neighbours land and vice versa... it’s on our front drive... I can copy and paste the exact covenant on here so you can see the exact wording and perhaps translate it for me...

[@MrAndrew1108]

I've Had a issue a brought a coach house with Taylor Wimpey new build from plot it has a restrictive covenant to use a room below my daughters Bedroom. Thats a Binstore for the neighbours to use .other the last 5 years it's been Misused and Damaged has happened and now management company agreed to relinquish their right to do a deed of variation of release to let me completely use it as a Habital area to make it a room .But the bins were removed and put within their red Boundary line bike store to make it a dual purpose bin/bike store but the local council refused planning application. NOW the management company just want to reuse my property again ... But midway through my complaint this Restrictive Convenant isn't noted on my TP1 or charged Register section B or C Does this Restrictive Convenant need to be registered correctly and if so what happens if not on my FREEHOLD property Deeds l/Tp1

[@IrisBeesley]

My Neighbour has A House on Wheels on his drive for over 2o Years..Breaching his Covenents Can I get him off ?

[@s.s5492]

You fuckin legend thank you

[@allshepdog]

I own two of the four flats in a 4 storey house . Each of the four flat owners was allocated 1/4 of the freehold share . In 2014 the freehold owner of the lower ground floor ( which I own ) died without a will in sheltered accommodation. I have a copy of the death certificate. the other new flat owner like me have been unable to do anything to finalise the transfer of the freehold since purchasing the flats more than 6/7 years ago. Can anyone help me to sort out this transfer of the freehold so that we can sort out our individual leases for extension etc . Allen Shepherd

[@greghammond7416]

N/A

[@greghammond7416]

Quit claim deed!