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24 Cards in this Set

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Covenantor
The person who makes the promise in a deed and assumes the burden.
Covanantee
The person to whom the promise is made and who enjoys the benefit.
Annexation
The process by which the benefit/burden is attached to the land so it automatically passes to successors.
Assignment
Express transfer of a covenant's benefit to a successor.
Austerberry v Oldham
The burden of a freehold covenant does not pass at common law.
Rhone v Stephens
Confirms the point in Austerberry that the burden does not pass at common law.

- Also there must be a correlation between the burden and benefit and party must have the choice over whether to take the benefit.
Thamesmead Town v Abbey
Emphasised the point in Rhone v Stephens that benefit and burden must be closely linked. Narrow application of the rule approved.
Tulk v Moxhay
Facts: Had notice of restrictions then built in Leicester Square anyway.

Held: Sets out the four requirements for the burden to pass at equity to a successor in title:

1. It must be negative.

2. The covenant must accommodate a dominant tenement.

3. Original parties must of intended the burden to run.

4. Notice.
Haywood v Brunswick
If expenditure is required, the covenant is positive. Action and expenditure = Positive Covenant.
Powell v Hemsley
- A covenant should be interpreted as a whole.

- A positive aspect in a covenant simply a condition of an overall negative covenant.

- Also a negative undertaking within a covenant could be found to be a condition of a positive covenant overall.
LCC v Allen
Held: Original Covenantee and successor must have retained an interest in land at the date the covenant was made and at time of enforcement. The covenant must attach to dominant land.
P&A Swift Investments
- Covenant must 'touch and concern' the land.
- Must affect the quality, nature, value or mode of use of the land.

Implied Assignment of benefit at common law:
- Covenant must 'touch and concern' the land.
- Original parties must intend that benefit should run with land (implied by s.79 LPA 1925)
- Covenantee must hold legal estate at time covenant was made.
- Successor in title must hold legal estate in land.
Smith and Snipes Hall Farm v RDCB
Facts: Covenant to widen and repair river banks.

Held: Confirms the test in P&A Swift. Wide interpretation of s.78. s.78 can also be used as evidence of intention of original parties for benefit to run.
Bailey v Stevens
Dominant and Servient land must be proximate.
Morrells of Oxford v Oxford United
- Covenants made by covenantor are deemed to be made on behalf of successors as well, unless a contradictory intention appears.
- Affirmed by s.79 LPA 1925.
Renals v Cowlishaw
- Aside from 'touching and concerning', there must be annexation, assignment or a scheme of development
Federated Homes v Mill Lodge
Terms of statute sufficient to annex the benefit of the covenant to the covenantee's land and express terms are not necessary.
Rogers v Hosegood
Held: If benefit of covenant is expressly annexed to the land at time of covenant, it is thereafter permanently attached.
Newton Abbott v Williamson
Held: Implied annexation of the benefit will be implied by surrounding circumstances but only in rare cases.
Crest Nicholson v McAllister
- Statutory annexation case. Limited the scope of s.78.

- Although s.78 has this automatic annexation effect, the deed must make clear reference to the land which is benefited.
Re Ballard's Conveyance
Problems with annexation:
- Area of land too large to be capable of being benefited?
- Successor to part cannot claim benefit over the whole?
Miles v Easter
Assignment - land must be properly identified and assignment made at time of conveyance.
Tophams Ltd v Earl of Sefton
Effect of continuing liability is not to make successors liable. Rather effect is to make original covenantor shoulder liability even after he has parted with the land.
Halsall v Brizell
Facts: Reciprocal benefits and burdens enjoyed by the users of the roads and sewers.

Held: A covenantor cannot take benefit without the burden. Applies where dominant owner has granted a benefit in form of a service/facility.