Peter Fisher & Elvinas Kukys – v2 Law Blog
Hello loyal readers! Its Peter Fisher here, many of you have been in touch to ask me where I have been the past month or so and when we would get things rolling on the blog again and for all those of you that have stuck with us this exam period and shown us your support I would like introduced the brand new, totally awesome new topic series…
The “Bumper Book of Law”, As some of you might know ‘bumper book’ is a term coined for cheap mass produced children’s books and therefore a fitting title for this series as, with the help of mine and Elvinas Kukys very own revision notes, we will provide an ‘All you need to know’ step by step guide on particular legal topics starting with the very first topic I revised. Restrictive covenants.
Now for you Law students out there this will be a great way to proof your own work and maybe give you some idea of how you did not to mention a great revision tool! If I don’t say so myself.
For anyone that doesn’t study law this is a great opportunity to learn all about specific topics of law and maybe even become as knowledgeable as the best law students!
Restrictive Covenants: These are a set of conditions or agreements that you make when buying or selling a piece of land, commonly an agreement to maintain a fence or not build on agricultural land, these can be ‘expressly assigned’ if you are told about them at the time of purchasing land or impliedly according to Section 78 of the Law of Property Act by being included in the title deed of a property. For a restrictive covenant to be enforceable by the courts both the benefit and the burden must pass all tests and conditions that exist in law (this is known as running with the land)
Note: This is a step by step guide on how to resolve a restrictive covenant related problem, this is often whether or not the covenant can be enforced. Legal precedents and references to the law are highlighted in bold.
Section 1: Common Law
1-3 = How restrictive covenants are enforced in law
4-5 = Does the Benefit run at common law?
6 = Does the Burden run at common law?
7-8: Exceptions which allow the burden to run at common law
Section 2: Equity
1 = Does the burden run in equity?
2-5 = Does the benefit run in equity?
6 = Specific rules relating to building schemes
7 = Remedies awardable by the court for a breach of a legally binding restrictive covenant
SECTION 1 – COMMON LAW
1. Restrictive covenants are enforced by Privity of Contract Case: Dano Ltd v Earl of Cadogan
2. Third Parties can enforce this type of contract S.56 Law of Property Act 1925 (LPA), Re Ecclesiastical Commissioners for England’s Conveyance 
3. however, it must have been made ‘with him’ Amsprop Trading Ltd v Harris Distribution Ltd  with the exception of future purchasers – Contracts (Rights of Third Parties) Act 1999. It applies to all contracts made after May 2000. Section 1(1) & 1(3)
4. Common Law Benefit
- The covenant must touch & concern the land. P & A Swift Investments v Combined English Stores Group  AC 632
- The parties must have intended the benefit to run: Expressly: the covenantor would expressly covenant with the covenantee, his successors in title, and those deriving title under him, or Impliedly: section 78 a covenant relating to any land of the covenantee shall be deemed to be made with the covenantee and his successors in title and the persons deriving title under him or them,
- At the date the covenant was made the covenantee must have had land which was benefited by the covenant.
- The claimant must derive his/her title from or under the original covenantee
5. Section 136 LPA 1925. The benefit can be assigned expressly in law provided it is in writing & notice is given to the covenantor AND Contracts (Rights of Third Parties) Act 1999. S 1(1)
6. The burden does NOT run. Austerberry v Corporation of Oldham (1885) Rhone v Stephens 
7. Chain of indemnity covenant
8. Doctrine of Halsall v Brizel 
SECTION 2 – EQUITY
1. Burden may pass in equity Tulk v. Moxhay(1848)
- The burden must be negative.
- At the date of the covenant the covenantee must have owned land which was benefitted by the covenant. London CC v Allen  3 KB 642 (followed in Morrells of Oxford v Oxford United Football Club Ltd  Ch 459).
- The original parties must have intended that the burden should run to bind successors.
- The person against whom the covenant is being enforced must have notice of the covenants.
- Unregistered land it should be registered as a Class D (ii) land charge & in Registered land it should be entered on the register as a notice.
2. Express Annexation
- The words of the original covenant must show that the original parties intended the benefit to run. Rogers v Hosegood 
- The whole of the land retained by the covenantee must be capable of benefitting from the covenant. Re Ballards Conveyance
3. Implied annexation This is a matter decided primarily by the courts: Newton Abbot Cooperative Society Ltd v Williamson & Treadgold Ltd  Ch 286 Marten v Flight Refuelling Ltd  Ch115.
4. Statutory annexation Federation Homes Ltd v Mill Lodge Properties  1 WLR 594 Section 78
5. Express assignment
- It must be possible to ascertain from the conveyance & all the circumstances the identity of the land that is intended to benefit
- The benefit of the covenant must be assigned to the purchaser of the land at the time of the conveyance or transfer to him. After transfer see: Re Union of London & Smith’s bank Ltd’s Conveyance 
6. Rules relating to Building Schemes
Elliston v Reacher  2 Ch 374
This involved an Edwardian housing estate. A BS had laid out an area for development in separate plots and sold these using identical conveyances and imposing identical covenants on the purchaser. The court held that these were enforceable against all successors to the original covenantor & set out 4 rules to be satisfied in order to establish a building scheme:
1. All the purchasers of the various plots acquire their title from the same vendor.
2. Prior to various sales the vendor had divided the estate into plots.
3. The RC’s were intended by the vendor to continue for the benefit of all the plots.
4. Every purchaser must have acquired his plot on the understanding that these restrictive covenants would benefit all the other plots on the scheme.
Re Dolphin’s Conveyance  Ch 654
Here there were two successive vendors.
Therefore condition 1 was not satisfied.
Held: RC’s were enforceable because it was clear from the terms of the individual conveyance that conditions 3 & 4 were satisfied.
Specific Performance (such as a court order to repair a fence)