Covenants Case Summaries

Tulk v Moxhay (1848) 2 Ph 774 (Ch)  Established that there are occasions in which equitable covenants can bind future purchasers of property and ‘run with the land’  Tulk owned several properties and sold one ot another making the purchaser promise to not build on the property, creating an equitable covenant  Purchaser sold the land and it passed through multiple transactions and was eventually purchased by D  D was aware of the covenant attached to the land at the time of transaction but he claimed it was unenforceable as he had not been a party to the original transaction  High Court HELD that an injunction could be passed to prevent D from building on the land  Covenant had been intended to ‘run with the land’  Covenant amounts to a contract between a vendor and vendee which is enforceable against a purchaser for value with either constructive or actual notice Haywood v Brunswick Permanent Building Society (1881) 8 QBD 403  Covenant saud E.J. his executors, administrators, and assigns pay C.J., his heirs and assigns the rent half-yearly, keep in good repair the land and when necessary, rebuild messuages on the land fo the value of double the rent  The building society (D) did not keep the messuages in good repair so plaintiff brought action against D in order to enforce the covenant  Case distinguished from Tulk v Moxhay as the rule that a covenant may be enforceable against the asignees in equity, only applies to restrictive covenants  Where land has been granted subject to a rent charge and a covenant to repair buildings, the assignee of the grantee of the land is not liable either at law or in equity to the assignee of the grantee of the rent-charge on the covenant to repair Austerberry v Oldham Corp (1885) 29 Ch. D. 750  Covenant that the trustees would make the road, keep it in good repair and allow access to it subject to tolls  The piece of land was bounded on both sides by lands belonging to A  Trustees made the road, which afforded access to A’s lands  A sold his lands to plaintiff and trustees sold road to D who declared it a street which under s150 Public Health Act 1875 rendered it repairable by the inhabitants at large which P resisted saying it was repairable by its owners  P could NOT enforce covenant against D because equity can NOT compel an owner to comply with positive covenants entered into by his predecessors  An individual can NOT without legislative authority, dedicate a road to the public if he charges tolls  Covenant = UNENFORCEABLE ; road is NOT repairable by the public at large within the meaning of s150 PHA 1875 but by its owners Rhone v Stephens [1994] 2 AC 310  Owners of house and adjoining cottage under the same roof sold the cottage  Under conveyance the vendor covenanted for himself and his successors in title as the owners of the house, to maintain the part of the house which was above the cottage in good condition, to the reasonable satisfaction to the purchasers and their successors in title  Both house and cottage sold  C = current owners of the cottage and D was representing the estate which owned the house – C said the roof above the cottage was leaking so D was in breach of covenant  HOL HELD – positive covenants do NOT ‘run with land’ – s79 LPA 1925   Austerberry v Corporation of Oldham [1885] – positive covenant was not enforceable because the successor in title was not party to the contract containing the covenant burden of positive covenants did not run with the freehold and was not enforceable in equity (THOUGH breach could be prevented/punished in equity) Goodman v Elwood [2013] EWCA Civ 1103  3rd party sold part of an industrial estate to D who covenanted to maintain a road providing access to his purchased land. 3rd party covenanted, on behalf of himself and his successors, to contribute to D’s maintenance cost  3rd party sold a unit on his land to C with a covenant that provided C would contribute to the 3rd party’s maintenance costs to the road (then paid to D)  D subsequently extended road by 1m and demanded contribution from C  Doctrine of benefit and burden still applies where only part of the original benefiting was acquired – these burdens do NOT need to be registered and C not liable to costs associated with extending the road  Subdivision does not affect the doctrine of benefit and burden  Burden of a positive covenant does NOT create an interest in land, unlike a restrictive covenant, therefore does NOT need registering  Because C had no benefit from the 1m road (he was not allowed to use it) he was not obliged to contribute to its maintenance (its burden) Federated Homes v Mill Lodge Properties [1980] 1 WLR 594  Company owned 3 pieces of land  Gained planning permission to build on one, sold one to D with the condition they build no more than 300 properties on the land  Plaintiff became owners of other two pieces – one of the two had a restrictive covenant, the other did not  D carried out development on first patch of land, which had been granted planning permission  Plaintiff sought to restrict them  Court required to establish whether the land held the same covenant which the other lands were subject to? – if YES – plaintiff would be able to prevent D from building  HELD: land is sufficiently described in the conveyance of the property and under LPA 1925 s78 the benefit could be annexed to every part of the land THEREFORE the benefit ran with the land and the plaintiff could enforce the covenant to restrict the building upon the land Crest Nicholson Residential (South) Ltd v McAllister [2004] EWCA Civ 410  2 brothers purchased land for development and onward sale  Sold the land in plots to individuals with both user and building restrictive covenants attached  One sale required company to enter into an agreement for the construction of 5 new houses – challenged by D who owned a property which would have been affected by construction  HELD – restriction on the land had passed with the land, even after the 2 brothers had died  User restriction was to prevent more than one house being built so was a building restriction  Benefit of the covenant had not been annexed to the land which D owned – D could not show that she was the owner of the land which was intended to have the benefit THEREFORE D can NOT rely on the restrictive covenant to prevent the building work which would have affected her land