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Mapa mental

FREEHOLD COVENANTS 2

costafortune Land Law Degree Inglês

Mind map on freehold covenants: burden in equity, registration, benefit, remedies and discharge

Mind map: Freehold covenants

Conteúdo do mapa

FREEHOLD COVENANTS 2

  1. Step 3 - Running of the burden in equity

    • Rules from TULK v MOXHAY
      • 1) Only applies to negative/restrictive covenants
        • A positive covenant may not pass in equity from RHONE v STEPHENS
          • 2) Must accommodate the dominant land: Original covenatee was owner of the benefitted land when covenant granted
            • The dominant and servient tenements must have enjoyed sufficient proximity
              • Proximity test from FORMBY v BARKER - covenants binding land in Hampstead too remote to benefit land in Clapham!!
                • Original parties must of intended burden to run with land, either expressly in deed or impliedly. s79 LPA following case of FEDERATED HOMES v MILL LODGE PROPERTIES
                  • 3) Burden of the covenant must have been intended by both parties to run with servient land. Expressly or impliedly!
  2. REGISTRATION OF RESTRICTIVE COVENANTS

    • In many cases even if all conditions are met, will only bind successor if registered
      • Pre 1926 - Doctrine of Notice
      • Post 1926 - Unregistered land needs land charge. Registered land by way of notice
      • If not registered, void for BFP (Cannot be an overriding interest in registered land)
  3. Step 4 - Running of benefit in equity

    • Benefit will pass in equity if it touches and concerns the land
      • Or the benefit passes by: Annexation; Assignment or under a Building Scheme
        • Covenant touch & concern the land from SMITH & SNIPES HALL FARM v RIVER DOUGLAS CATCHMENT BOARD
          • Annexation - Expressly: where words of covenant show that benefit was intended to pass to new owners of DT
            • Or impliedly: s78 LPA when covenant relates to the land, benefit will be annexed to DT, unless evidence to the contrary. FEDERATED HOMES v MILL LODGE PROPERTIES
              • Assignment - Unless covenant is annexed to land will remain separate from it. For benefit to pass must be an express assignment of covenant
                • Assignment must be at same time as transfer of the land, usually within transfer deed - ROAKE v CHADHA
                  • Required with every sale or purchase of the land
                    • Building scheme - when a scheme exists, benefit and burden of covenants will pass with land
                      • Requirements in ELLISTON v REACHER
                        • Must be a common vendor
                        • Estate must be laid out in plots before selling
                        • Restrictions must benefit all the lots
                        • Parties will have purchased on basis that covenants enforceable by all other purchasers in same scheme
                        • Area of the scheme is clearly defined
  4. REMEDIES at CL

    • If able to prove benefit and burden, could only claim damages, court does not have discretion
    • In Equity - If able to prove benefit and burden may be able to claim, Injunction (Restrictive); Specific Performance (Positive) or Damages
      • Damages would only be awarded when: Injury to claimants rights is small; the damage can be estimated in money; damage can be adequately compensated with small payment or injunction would be too oppressive
  5. Discharge of Covenants as they can become outdated

    • Express Discharge - will the benefitted owner agree to the discharge?
    • Unity of Seisin - if you buy both the benefitted and burdened property
    • S84 LPA - Covenants discharged forcibly. ie formerly residential area
    • s28 LPA - Enforced by tribunal
  6. Reform Proposals

    • At present: person who agreed to covenant has contract and can be sued.
      • Even if they no longer live at the property
    • Introduction of a 'land obligation' binding on successors
      • Would no longer be enforceable against original covenantor
        • These land obligations would be positive and negative
        • Would be registrable
          • Moving towards the covenant being to the property and not the current owner

Informações

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Degree Land Law Mapa Mental sobre FREEHOLD COVENANTS 2, criado por costafortune em 12-05-2013.
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costafortune
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