-
Restrictive Covenants: What you need to Know
Buying real estate is one of the biggest investments you are going to make but it also presents a great risk, particularly when you are planning to do construction, whether it be making an addition to your home or developing the land for a commercial purpose. One of the ways to guard against these risks is to carefully scrutinize restrictive covenants on the Certificate of Title for the land. In this video, our Krishna Desai and Antwan Cotterell explain in more detail what you need to know about restrictive covenants, the consequences of a breach and how to avoid these consequences.
Krishna Desai is a Partner and Head of our Property department and Antwan Cotterell is an Associate in our Property department.
Contact
Visit the Firm’s website https://myersfletcher.com/
https://www.faceboo...
published: 25 Dec 2020
-
What is a Restrictive Covenant?
There are three basic types of Restrictive Covenants; the non-disclosure agreement, non-solicitation agreement, and the non-compete agreement. An improperly written restrictive covenant can be unenforceable and, thus, useless.
________________________________________________________________
Subscribe for more Legal Tips and General Advice: https://www.youtube.com/channel/UCplHCuXidRgwPiIVTtWNmGw?sub_confirmation=1
The atCause Law Office provides legal advice and services for Contract Review, Business Transactions, Trademark Protection and other legal matters in Pinellas Co., FL.
For more information:
➤ Website: https://www.atcauselaw.com/
➤ Facebook: https://www.facebook.com/atCAUSELawOffice
published: 11 May 2021
-
Restrictive Covenants | WBW Solicitors | South West Solicitors
Jenny Kemp, Dispute Resolution Solicitor at WBW Solicitors in Newton Abbot, discusses restrictive covenants and explains what they are, why they are imposed and how a dispute resolution expert can help.
To view Jenny's profile, please click here: https://www.wbw.co.uk/team-member/jenny-kemp/
For further information on our dispute resolution services, please visit: https://www.wbw.co.uk/domestic/disputes/
published: 08 Dec 2021
-
Restrictive Covenants - three issues you need to know about.
Are there ways to make a restrictive covenant enforceable? Here are a few thoughts on this situation.
Barakat + Bossa specializes in Non-Compete contracts. More information and contact details is available at http://b2b.legal/ or via phone at 305-444-3114.
published: 02 Feb 2021
-
Restrictive Covenants in Employment Contracts
Welcome to Experts Answers.
Restrictive Covenants in Employment Contracts.
Employment advice from employment experts at https://www.expertanswers.co.uk/
You may have just joined a new employer and you’re being asked to sign a contract and you’ve noticed that in the contract, because wisely, you’ve read it, there’s a clause which says that if you leave, you cant’s work for, or set up, or be involved in a business that competes with the job you are about to take on for a period.
We often get asked, “Is that enforceable?” Well it can be enforceable. But when is it enforceable? Well, there’s no hard-fast rule, let me tell you now. The more onerous the covenant the more chance that it is not enforceable.
If for argument’s sake there is a restriction that if you leave your current e...
published: 08 Apr 2015
-
Restrictive Covenants Explained - An expert answers the key questions
Want to know about Restrictive Covenants and non compete clauses? Seb answers the key questions about restrictive covenants and non compete clauses. Maybe you are looking to leave your employer to work for a competitor. Perhaps you want to start your own business. Here are the key things you need to know about restrictive covenants and non compete clauses.
✅ SUBSCRIBE to our YouTube channel for more videos: https://www.youtube.com/c/RevorecRecr...
✅ Follow Revorec on LinkedIn: https://www.linkedin.com/company/revo...
✅ Follow Seb on LinkedIn: https://www.linkedin.com/in/sebastian...
For more information about Revorec Recruitment Solutions go to: https://revorec.com/
Tags: Restrictive covenants, non compete clauses, legal letters, competitions act, fair and reasonable, employment contrac...
published: 10 May 2022
-
Pass the Bar Exam: Property - Restrictive Covenants and Zoning
Want more free bar exam review videos? Like this video and subscribe to our bar exam review channel here: https://www.youtube.com/subscription_center?add_user=QuimbeeDotCom
Imagine that a hunter built an outdoor shooting range on his land for target practice. The hunter sold a different part of his land to a teacher, who recorded the deed in the public property records. The deed stated, quote, “the parties agree for themselves, their successors, and assigns that there will be no shooting on the hunter’s remaining property after 8 p.m.,” unquote. This language creates a real covenant, which is an agreement to use or limit the use of one tract of land for the benefit of another tract.
Practice with real, licensed bar exam questions. Study over 1,500 real, licensed questions from past bar e...
published: 23 Apr 2020
-
Power Tips #5: What is a Restrictive Covenant? (PT5)
What are restrictive covenants?
For more information visit https://goo.gl/5XJPB9
#MyPowerLiving is an online Jamaican real estate community that empowers sellers, buyers and renters with valuable information to achieve success in their search for a home or business.
The show – Power Living with Cherine Anderson is one passionate Realtor® take on the Jamaican industry. It explores the Jamaican real estate trends, business culture and gives the community access to industry experts to help answer the how, when, where and what to buy, sell or rent in Jamaica.
Cherine Anderson is a world class entertainer and aspiring entrepreneur. Her powerful voice and thought-provoking lyrics has brought her in front of well over 1,000,000 live audience fans worldwide, winning multiple awards along th...
published: 16 Jan 2018
-
August 4, 2024 - God's Covenant With Israel (A History of God's Promises, pt. 6)
Pastor Doug Smith preaching.
Nicole Smith leads worship.
published: 05 Aug 2024
-
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 [1...
published: 21 May 2017
3:18
Restrictive Covenants: What you need to Know
Buying real estate is one of the biggest investments you are going to make but it also presents a great risk, particularly when you are planning to do construct...
Buying real estate is one of the biggest investments you are going to make but it also presents a great risk, particularly when you are planning to do construction, whether it be making an addition to your home or developing the land for a commercial purpose. One of the ways to guard against these risks is to carefully scrutinize restrictive covenants on the Certificate of Title for the land. In this video, our Krishna Desai and Antwan Cotterell explain in more detail what you need to know about restrictive covenants, the consequences of a breach and how to avoid these consequences.
Krishna Desai is a Partner and Head of our Property department and Antwan Cotterell is an Associate in our Property department.
Contact
Visit the Firm’s website https://myersfletcher.com/
https://www.facebook.com/myersfletcher/
https://twitter.com/MyersFletcherJA
https://www.linkedin.com/company/myers-fletcher-&-gordon
Disclaimer
This Video is for general information purposes only and does not constitute legal advice.
https://wn.com/Restrictive_Covenants_What_You_Need_To_Know
Buying real estate is one of the biggest investments you are going to make but it also presents a great risk, particularly when you are planning to do construction, whether it be making an addition to your home or developing the land for a commercial purpose. One of the ways to guard against these risks is to carefully scrutinize restrictive covenants on the Certificate of Title for the land. In this video, our Krishna Desai and Antwan Cotterell explain in more detail what you need to know about restrictive covenants, the consequences of a breach and how to avoid these consequences.
Krishna Desai is a Partner and Head of our Property department and Antwan Cotterell is an Associate in our Property department.
Contact
Visit the Firm’s website https://myersfletcher.com/
https://www.facebook.com/myersfletcher/
https://twitter.com/MyersFletcherJA
https://www.linkedin.com/company/myers-fletcher-&-gordon
Disclaimer
This Video is for general information purposes only and does not constitute legal advice.
- published: 25 Dec 2020
- views: 7372
4:01
What is a Restrictive Covenant?
There are three basic types of Restrictive Covenants; the non-disclosure agreement, non-solicitation agreement, and the non-compete agreement. An improperly wri...
There are three basic types of Restrictive Covenants; the non-disclosure agreement, non-solicitation agreement, and the non-compete agreement. An improperly written restrictive covenant can be unenforceable and, thus, useless.
________________________________________________________________
Subscribe for more Legal Tips and General Advice: https://www.youtube.com/channel/UCplHCuXidRgwPiIVTtWNmGw?sub_confirmation=1
The atCause Law Office provides legal advice and services for Contract Review, Business Transactions, Trademark Protection and other legal matters in Pinellas Co., FL.
For more information:
➤ Website: https://www.atcauselaw.com/
➤ Facebook: https://www.facebook.com/atCAUSELawOffice
https://wn.com/What_Is_A_Restrictive_Covenant
There are three basic types of Restrictive Covenants; the non-disclosure agreement, non-solicitation agreement, and the non-compete agreement. An improperly written restrictive covenant can be unenforceable and, thus, useless.
________________________________________________________________
Subscribe for more Legal Tips and General Advice: https://www.youtube.com/channel/UCplHCuXidRgwPiIVTtWNmGw?sub_confirmation=1
The atCause Law Office provides legal advice and services for Contract Review, Business Transactions, Trademark Protection and other legal matters in Pinellas Co., FL.
For more information:
➤ Website: https://www.atcauselaw.com/
➤ Facebook: https://www.facebook.com/atCAUSELawOffice
- published: 11 May 2021
- views: 2057
3:58
Restrictive Covenants | WBW Solicitors | South West Solicitors
Jenny Kemp, Dispute Resolution Solicitor at WBW Solicitors in Newton Abbot, discusses restrictive covenants and explains what they are, why they are imposed and...
Jenny Kemp, Dispute Resolution Solicitor at WBW Solicitors in Newton Abbot, discusses restrictive covenants and explains what they are, why they are imposed and how a dispute resolution expert can help.
To view Jenny's profile, please click here: https://www.wbw.co.uk/team-member/jenny-kemp/
For further information on our dispute resolution services, please visit: https://www.wbw.co.uk/domestic/disputes/
https://wn.com/Restrictive_Covenants_|_Wbw_Solicitors_|_South_West_Solicitors
Jenny Kemp, Dispute Resolution Solicitor at WBW Solicitors in Newton Abbot, discusses restrictive covenants and explains what they are, why they are imposed and how a dispute resolution expert can help.
To view Jenny's profile, please click here: https://www.wbw.co.uk/team-member/jenny-kemp/
For further information on our dispute resolution services, please visit: https://www.wbw.co.uk/domestic/disputes/
- published: 08 Dec 2021
- views: 5652
0:55
Restrictive Covenants - three issues you need to know about.
Are there ways to make a restrictive covenant enforceable? Here are a few thoughts on this situation.
Barakat + Bossa specializes in Non-Compete contracts. Mo...
Are there ways to make a restrictive covenant enforceable? Here are a few thoughts on this situation.
Barakat + Bossa specializes in Non-Compete contracts. More information and contact details is available at http://b2b.legal/ or via phone at 305-444-3114.
https://wn.com/Restrictive_Covenants_Three_Issues_You_Need_To_Know_About.
Are there ways to make a restrictive covenant enforceable? Here are a few thoughts on this situation.
Barakat + Bossa specializes in Non-Compete contracts. More information and contact details is available at http://b2b.legal/ or via phone at 305-444-3114.
- published: 02 Feb 2021
- views: 3616
1:47
Restrictive Covenants in Employment Contracts
Welcome to Experts Answers.
Restrictive Covenants in Employment Contracts.
Employment advice from employment experts at https://www.expertanswers.co.uk/
You ...
Welcome to Experts Answers.
Restrictive Covenants in Employment Contracts.
Employment advice from employment experts at https://www.expertanswers.co.uk/
You may have just joined a new employer and you’re being asked to sign a contract and you’ve noticed that in the contract, because wisely, you’ve read it, there’s a clause which says that if you leave, you cant’s work for, or set up, or be involved in a business that competes with the job you are about to take on for a period.
We often get asked, “Is that enforceable?” Well it can be enforceable. But when is it enforceable? Well, there’s no hard-fast rule, let me tell you now. The more onerous the covenant the more chance that it is not enforceable.
If for argument’s sake there is a restriction that if you leave your current employer, you can’t be involved in a competing business for the next five years worldwide, I can tell you that is not going to be enforceable.
If however, that it said, you can’t be involved in a competing business for the next three months that may be enforceable. If it were to say for argument’s sake, you can’t set up as a news agent throughout the country for the next three months, that’s unreasonable. If it said you can’t be a news agent within a one mile radius for six months that could well be reasonable.
Advice on restrictive covenants from Experts at https://www.expertanswers.co.uk/
https://wn.com/Restrictive_Covenants_In_Employment_Contracts
Welcome to Experts Answers.
Restrictive Covenants in Employment Contracts.
Employment advice from employment experts at https://www.expertanswers.co.uk/
You may have just joined a new employer and you’re being asked to sign a contract and you’ve noticed that in the contract, because wisely, you’ve read it, there’s a clause which says that if you leave, you cant’s work for, or set up, or be involved in a business that competes with the job you are about to take on for a period.
We often get asked, “Is that enforceable?” Well it can be enforceable. But when is it enforceable? Well, there’s no hard-fast rule, let me tell you now. The more onerous the covenant the more chance that it is not enforceable.
If for argument’s sake there is a restriction that if you leave your current employer, you can’t be involved in a competing business for the next five years worldwide, I can tell you that is not going to be enforceable.
If however, that it said, you can’t be involved in a competing business for the next three months that may be enforceable. If it were to say for argument’s sake, you can’t set up as a news agent throughout the country for the next three months, that’s unreasonable. If it said you can’t be a news agent within a one mile radius for six months that could well be reasonable.
Advice on restrictive covenants from Experts at https://www.expertanswers.co.uk/
- published: 08 Apr 2015
- views: 985
13:11
Restrictive Covenants Explained - An expert answers the key questions
Want to know about Restrictive Covenants and non compete clauses? Seb answers the key questions about restrictive covenants and non compete clauses. Maybe you a...
Want to know about Restrictive Covenants and non compete clauses? Seb answers the key questions about restrictive covenants and non compete clauses. Maybe you are looking to leave your employer to work for a competitor. Perhaps you want to start your own business. Here are the key things you need to know about restrictive covenants and non compete clauses.
✅ SUBSCRIBE to our YouTube channel for more videos: https://www.youtube.com/c/RevorecRecr...
✅ Follow Revorec on LinkedIn: https://www.linkedin.com/company/revo...
✅ Follow Seb on LinkedIn: https://www.linkedin.com/in/sebastian...
For more information about Revorec Recruitment Solutions go to: https://revorec.com/
Tags: Restrictive covenants, non compete clauses, legal letters, competitions act, fair and reasonable, employment contracts, employment law, can i work with existing clients, am i allowed to work with existing clients, can i work for a competitor, can i work with a competing company, are restrictive covenants enforcable, contract disputes, covenant, legal covenant, restrictive covenants meaning, revorec recruitment solutions, legal advice, contract law, new business advice, business advice
https://wn.com/Restrictive_Covenants_Explained_An_Expert_Answers_The_Key_Questions
Want to know about Restrictive Covenants and non compete clauses? Seb answers the key questions about restrictive covenants and non compete clauses. Maybe you are looking to leave your employer to work for a competitor. Perhaps you want to start your own business. Here are the key things you need to know about restrictive covenants and non compete clauses.
✅ SUBSCRIBE to our YouTube channel for more videos: https://www.youtube.com/c/RevorecRecr...
✅ Follow Revorec on LinkedIn: https://www.linkedin.com/company/revo...
✅ Follow Seb on LinkedIn: https://www.linkedin.com/in/sebastian...
For more information about Revorec Recruitment Solutions go to: https://revorec.com/
Tags: Restrictive covenants, non compete clauses, legal letters, competitions act, fair and reasonable, employment contracts, employment law, can i work with existing clients, am i allowed to work with existing clients, can i work for a competitor, can i work with a competing company, are restrictive covenants enforcable, contract disputes, covenant, legal covenant, restrictive covenants meaning, revorec recruitment solutions, legal advice, contract law, new business advice, business advice
- published: 10 May 2022
- views: 1660
0:31
Pass the Bar Exam: Property - Restrictive Covenants and Zoning
Want more free bar exam review videos? Like this video and subscribe to our bar exam review channel here: https://www.youtube.com/subscription_center?add_user=Q...
Want more free bar exam review videos? Like this video and subscribe to our bar exam review channel here: https://www.youtube.com/subscription_center?add_user=QuimbeeDotCom
Imagine that a hunter built an outdoor shooting range on his land for target practice. The hunter sold a different part of his land to a teacher, who recorded the deed in the public property records. The deed stated, quote, “the parties agree for themselves, their successors, and assigns that there will be no shooting on the hunter’s remaining property after 8 p.m.,” unquote. This language creates a real covenant, which is an agreement to use or limit the use of one tract of land for the benefit of another tract.
Practice with real, licensed bar exam questions. Study over 1,500 real, licensed questions from past bar exams, plus Quimbee’s own sample question bank.
Get Free Practice Bar Exam Question ► https://www.quimbee.com/bar-review/mbe/practice-questions
You trusted Quimbee through law school. Now, let us help you pass the bar exam.
Pass the Bar Exam with Quimbee ► https://www.quimbee.com/bar-review
Stay Connected to Quimbee:
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passthebarexam #barexam #quimbeebarreview #barreview
https://wn.com/Pass_The_Bar_Exam_Property_Restrictive_Covenants_And_Zoning
Want more free bar exam review videos? Like this video and subscribe to our bar exam review channel here: https://www.youtube.com/subscription_center?add_user=QuimbeeDotCom
Imagine that a hunter built an outdoor shooting range on his land for target practice. The hunter sold a different part of his land to a teacher, who recorded the deed in the public property records. The deed stated, quote, “the parties agree for themselves, their successors, and assigns that there will be no shooting on the hunter’s remaining property after 8 p.m.,” unquote. This language creates a real covenant, which is an agreement to use or limit the use of one tract of land for the benefit of another tract.
Practice with real, licensed bar exam questions. Study over 1,500 real, licensed questions from past bar exams, plus Quimbee’s own sample question bank.
Get Free Practice Bar Exam Question ► https://www.quimbee.com/bar-review/mbe/practice-questions
You trusted Quimbee through law school. Now, let us help you pass the bar exam.
Pass the Bar Exam with Quimbee ► https://www.quimbee.com/bar-review
Stay Connected to Quimbee:
Facebook ► https://www.facebook.com/quimbeedotcom/
Twitter ► https://twitter.com/quimbeedotcom
passthebarexam #barexam #quimbeebarreview #barreview
- published: 23 Apr 2020
- views: 382
1:26
Power Tips #5: What is a Restrictive Covenant? (PT5)
What are restrictive covenants?
For more information visit https://goo.gl/5XJPB9
#MyPowerLiving is an online Jamaican real estate community that empowers sell...
What are restrictive covenants?
For more information visit https://goo.gl/5XJPB9
#MyPowerLiving is an online Jamaican real estate community that empowers sellers, buyers and renters with valuable information to achieve success in their search for a home or business.
The show – Power Living with Cherine Anderson is one passionate Realtor® take on the Jamaican industry. It explores the Jamaican real estate trends, business culture and gives the community access to industry experts to help answer the how, when, where and what to buy, sell or rent in Jamaica.
Cherine Anderson is a world class entertainer and aspiring entrepreneur. Her powerful voice and thought-provoking lyrics has brought her in front of well over 1,000,000 live audience fans worldwide, winning multiple awards along the way. Host of #Cherineacupaday, an inspirational vlog and Power Living with Cherine Anderson, a weekly real estate show, she uses her multiple platforms to inspire fans worldwide. She continues to help students in Jamaica through her Reach One Child "ROC" Foundation, offering educational scholarships and mentorship programs.
----------------------------------------------------------------------------------------------------------------
Follow "My Power Living"
Facebook: www.facebook.com/mypowerliving
Instagram: www.instagram.com//mypowerliving
Twitter: www.twitter.com//mypowerliving
Snapchat: @mypowerliving
https://wn.com/Power_Tips_5_What_Is_A_Restrictive_Covenant_(Pt5)
What are restrictive covenants?
For more information visit https://goo.gl/5XJPB9
#MyPowerLiving is an online Jamaican real estate community that empowers sellers, buyers and renters with valuable information to achieve success in their search for a home or business.
The show – Power Living with Cherine Anderson is one passionate Realtor® take on the Jamaican industry. It explores the Jamaican real estate trends, business culture and gives the community access to industry experts to help answer the how, when, where and what to buy, sell or rent in Jamaica.
Cherine Anderson is a world class entertainer and aspiring entrepreneur. Her powerful voice and thought-provoking lyrics has brought her in front of well over 1,000,000 live audience fans worldwide, winning multiple awards along the way. Host of #Cherineacupaday, an inspirational vlog and Power Living with Cherine Anderson, a weekly real estate show, she uses her multiple platforms to inspire fans worldwide. She continues to help students in Jamaica through her Reach One Child "ROC" Foundation, offering educational scholarships and mentorship programs.
----------------------------------------------------------------------------------------------------------------
Follow "My Power Living"
Facebook: www.facebook.com/mypowerliving
Instagram: www.instagram.com//mypowerliving
Twitter: www.twitter.com//mypowerliving
Snapchat: @mypowerliving
- published: 16 Jan 2018
- views: 138
17:45
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 (covena...
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
https://wn.com/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
- published: 21 May 2017
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