Topic: The rules governing the passing of benefits and burdens of freehold covenants should be enunciated. Explain and illustrate.
The first question that needs to be answered is ‘what do we mean by freehold covenants? Freehold covenants bear a resemblance to incumbrances and symbolize yet another way by which one landowner might be in command of or affect the use of neighbouring land. A freehold covenant is a pledge made by one person to another to do, or more generally not to do, something on their own or adjacent land, imposing a burden on the land of the covenantor, and conferring a benefit on the land of the covenantee.
COVENANTOR – is the individual making the promise on behalf of his land. This is where the burden lies.
COVENANTEE – the landowner to whom the promise is being made .This is where the benefit lies.
A covenant is a promise made by deed. A deed is a written legal document according to which ownership of real property is conveyed from one party to another. Covenants are contracts that are effective in land law. For this reason, covenants are binding and enforceable contract law between the original parties of the covenant. As a result the covenantor is obliged to do, or refrain from doing, that which he promised, and the covenantee has the right to sue for performance of the covenant if he does not. The bulk of covenants between freeholders are ‘restrictive’, they prevent a landowner from doing something on the land he owns (eg., building a structure above a certain height), as opposed to requiring him to take positive action. This is not the case for ‘positive’ covenants, which usually require spending money, cannot exist (eg. a covenant to pay for the maintenance of a boundary fence), but the enforcement of a positive covenant between people other than the original parties to it is awfully easier said than done.
When approaching this topic , one should:
first of all, analyse who are the original parties to the covenant and consequently whether the
covenant can be enforced contractually, without resorting to land law.
Secondly, examine the proprietary effect of the covenant in land law, evaluating whether
the burden and/or benefit has run with the land to subsequent transferees of the land.
A. Enforcement under Privity of Contract
Linking the original covenanting parties there will be a contract and under the common law doctrine of privity of contract the party with the benefit will be able to enforce the covenant in opposition to the party with the burden. In case of all other types of contracts the subject matter remains with the original contracting parties but this is not the case with land. Both the original parties pass the land to their successors by means of sale or inheritance. According to the doctrine of privity of contract, the benefit may be assigned however the burden cannot be passed on. Hence the successor to the land owner with the benefit of the covenant will not be able to enforce the covenant against the successor to the land owner with the burden.
B. Enforcement under Privity of Estate
The common law doctrine of Privity of Estate allows the benefit and burden of leasehold covenants to pass and the courts have permitted the doctrine to enable the benefit of a freehold covenant to pass but have made passage of burden unacceptable. As a result, the successor to the land owner with the benefit of the freehold covenant is unable to enforce the covenant against the successor to the land owner with the burden.
If only the benefit of a covenant runs with the land and not the burden, according to Privity of Contract and Privity of Estate, it means the original covenantee’s successor can only sue the original covenantor, if he or she could be found, for a breach committed by the successor who is holding the land at present. Consequently, when the covenantor sells his or her estate to another person, he or she will more often than not include an indemnity clause.
C. Equitable Interests
Since neither of the common law doctrines of Privity of Contract and Estate allows the burden to pass, Application of equity comes in handy.. Equity has solved the problem by recognizing the covenant as an equitable interest nevertheless this is only applicable to restrictive covenants. Given the covenant fulfils certain criteria, the successor to the original covenantor who at present holds or owns the dominant tenement may enforce the covenant against the successor to the original covenantee who at present holds or owns the servient tenement. Hence both the benefit and burden of a restrictive covenant may run with the land.
D. Positive Covenants
The benefit of a positive covenant will pass from one owner of the dominant property to another owner according to privity of estate in the subsequent circumstances:
- The covenant be obliged to touch and concern the land;
- It ought to have been intended that the benefit of the covenant should run with the covenantee’s land.
- The original covenantee must own legal estate in the land to be benefited suring the creation of the covenant.
The benefit of a covenant can also be imposed against the original covenantor by covenantees ,who even though they get the benefit of the covenant, are not in reality parties’ to it given the contract explicitly provides or a term in the contract purports to bestow a benefit. E.g. “the purchasers hereby covenant with the vendors and their successors and with the owners for the time being of the land adjoining or adjacent to the land hereby conveyed”. 
The burden cannot pass under privity of contract or privity of estate. In Austerberry v Oldham Corporation (1885) it was held that the burden cannot run with the land under privity estate with the exception of under the case of Halsall v Brizell  Ch 169 where it was held that a person who agrees to get into a covenant to contribute to the cost of providing or maintaining a service is bound by that covenant if he or she receives a benefit from the provision of that service e.g. a road or water pipe. Also under the case of Tito v Waddell (no.2)  Ch 106. The original covenantor left liable.
Thus, a burden of a covenant can only be passed on or enforced directly against the original covenantor but not his or her successor in title. Conversely the covenant may be enforced by the original covenantee or his or her successors in title given that the successor looking for to enforce the covenant at present holds or owns the land and hence has privity of estate. This has the following effect, that a successor in title to the original covenantor might be violating the covenant but nevertheless it is the original covenantor who might be sued. 
In order to protect him or herself the original covenantor might fashion a sequence of indemnity connecting him or herself and the successive subsequent owners.
E. Restrictive Covenants
Equity has converted restrictive covenants into equitable interests. Thus these become attached to the land given the subsequent conditions are satisfied.
In order to claim the benefit of a restrictive covenant as an equitable interest the subsequent requisites must be present:
- the covenant is obliged to touch and concern the land;
- the original parties must have intended the covenant to run with the land;
- the benefit must be “attached” to the land by means of annexation or assignment.
Here the phrasing of a covenant in a deed indicates that the covenant is annexed to the land. There must exist an intention to annex the benefit to the land rather than endow a solely personal right. The phrasing of the covenant must make it clear that all subsequent owners of the land are intended to benefit. At one time it was essential to either state that specific land was to be benefited or that the covenant has to benefit the covenantee according to his or her capacity as owner of a particular area of land. Since  this is no longer obligatory as it was held that applied to annex to the land the benefit of any covenant. It is suggested by some commentators that this goes too far in that:
- apart from saving words it positively annexes covenants;
- it makes it more complicated to differentiate between cases where there is an intention to annex the benefit and those where the intention is absent.
Under the act of S.78 LPA 1925 it is no longer required to specifically state that the covenant is for the benefit of the original covenantee and his or her successors since this is naturally implied unless there is clear-cut phrasing opposing it. Also under the benefit of a covenant annexed to the land is in the deficiency of any opposing intention is annexed to each, any,every part of that land and will pass with every part of the land that is disposed off disjointedly.
There can be no successful annexation if the land is bigger than can be realistically benefited. This is generally overcome by the adding together of the words “and any part thereof” in the deed makingthe covenant. The courts are flexible about this requirement.
By virtue of  it will be implied that the benefit of any restrictive covenants enclosed in the original conveyance and in so doing annexed to the land will be transferred to any subsequent possessor of the land. On the other hand, if the effect of has been excluded then the benefit of the restrictive covenants must be explicitly assigned every time the land is conveyed as they will not be annexed otherwise.
For an assignment to be effective the subsequent circumstances must be met:
a) The covenant necessarily been taken for the benefit of the land of the covenantee.
b) The dominant land necessarily be recognizable with reasonable certainty.
c) The dominant land necessarily be owned in whole or in part by the covenantee. The whole rationale of equity enabling restrictive covenants to be enforced is to shelter the land of the covenantee. Thus, once the covenantee is separated from the land he or she no longer needs its protection and the right to enforce the covenant passes to the new owner/covenantee of the dominant land.
d) The covenant should be capable of benefiting the land.
e) The assignment of the covenant necessarily has to take place at the same time as the conveyance of the land to the covenantee , typically the assignment will be included in the deed of conveyance.
f) Given the covenant benefits all and every part of the dominant land, then Equity will enable the benefit of the covenant to be assigned when part of the dominant land is sold off.
Once an assignment of the covenant included in the original conveyance has taken place, that assignment will not annex the covenant to the land if the annexation phrasing is not included in the covenant or if annexation is excluded. The covenant will have to be assigned every time the land is conveyed, if the assignment is relied upon. As a result, for a successor to enforce the covenant he or she will have to show a sequence of assignments
In  the conditions which a covenant ought to satisfy before the benefit will run with the land are laid out:-
a) the covenant should be negative in nature;
b) there should be a dominant and servient tenement;
Apart from the original covenantee who has the ability to sue the original covenantor for violation of covenant at any time by reason of privity of contract, a covenant cannot be enforced against an inhabitant of the servient land who is in violation unless the person looking to enforce the covenant holds or owns the legal estate of the dominant land. 
Conversely, a landlord’s reversion on a lease is a satisfactory interest and may allow him or her to enforce a restrictive covenant against a sub-lessee (against someone he or she could not enforce the covenant in another way as there would be no privity of contract).
c) the covenant should touch and concern the dominant land;
d) the covenant necessarily have been intended to run with the covenantor’s land;
e) safeguard the interest
- if the covenant was formed before 1925 the doctrine of notice applies
- if the covenant was formed after 1925 and the land is Unregistered then the covenant should be registered at the Land Charges Registry as a D(ii) Land Charge;
- if the covenant was formed after 1925 and the land is Registered then it must appear on the register as a minor interest.
F. Development Scheme
Where there is a housing development or shopping precinct project involved, equity will allow the restrictive covenants which relate to every individual plot on the estate to be enforced by everyone who currently own any land within the scheme. In so doing, a local law is created. A covenant entered into by the buyer of the plot is enforceable both by those who have formerly bought plots and by those who will consequently buy plots and by their successors in title.
The state of affairs of a Scheme of Development were laid down in :
a) equally covenantee and the covenantor or their successors should have derived their titles to their relevant properties from a common vendor.
b) previous to the sale of the plots to the covenantee and covenantor the vendor should have laid out the estate in plots subject to limitations which it was intended should be imposed on all the plots and which were unfailing with a general scheme of development.
c) The limitations were intended by the common vendor to be for the benefit of each and every plots sold. 
d) The covenantee and covenantor or their successors bought their respective plots with full knowledge of the limitations and that the benefit of the restrictions was to be enjoyed by all the plots in the Scheme.
e) There should be a clearly distinct area within which the Scheme is functioning
The reciprocity of obligation is imported by the community of interest in equity. Conversely, over the years the courts have been equipped to recognize a scheme if:
a) there is a clear and comprehensible definition of the scheme; and
b) there was an intention by the original vendor and purchasers that each and every purchaser should be jointly bound by, and jointly entitled to enforce, a defined set of limitations.
Even though, the vendor is bound by the scheme he or she may hold back the power to waive or vary the restrictive covenants.
The restrictive covenants under building schemes must be registered in the similar manner as other restrictive covenants
Special rules apply to the enforcement of covenents in building schemes. In short, the land must be laid out in plots, and the covenants must be expressed to be between each landowner and the other landowners in the scheme.
G. Registered Land
The burden of a restrictive covenant, which is to run with the land of the covenantor ought to be protected by notice, on the charges register of the title of the servient land.The benefit of a restrictive covenant, which is not put into practice, entered on the dominant land. Positive Covenants are not differentiated from restrictive covenants when the land is registered, and so are present on the charges register along with the restrictive covenants.
H. Unregistered Land
Covenants fashioned prior to 1926 bind each and every person, who got the burdened land with the exception of a bona fide purchaser, for value of the legal estate with no notice.
Covenants formed after 1926 are void against a buyer of the legal estate in the burdened land for money or equivalent monetary value unless they are registered at the Land Charges Registry in the appropriate register (D(ii)). Thus, a restrictive covenant will still bind the buyer of an equitable interest or a buyer of the legal estate who does not give money or something of equivalent monetary value. Restrictive Covenants between lessors and lessees cannot be registered since they can be found out from the lease.
I. Planning and Restrictive Covenants
Private management of the use of land via restrictive covenants and public management by planning permission operate alongside. A buyer must gratify him or herself in respect of both. Nonetheless, where planning permission has been approved for a use in contradiction to a restrictive covenant, an application to the Lands Tribunal for the emancipation of the covenant, will demonstrate that the emancipation of the covenant is rational
J. Release, Variation and Discharge of Restrictive Covenants
Express release or modification
A Restrictive covenant may be explicitly released or from land or personalized if the covenantee and covenantor or their successors consent:
- The release or adjustment must be by deed
- The benefited land is accurately recognized
- Each and every interested persons must belong to the parties
Announcement by the court as to legitimacy
Lands Tribunal have a discretion to change or set free a covenant with or without compensation in the subsequent situations:
If the covenant:
a) is outmoded due to a change in the nature of the neighbourhood, property or material conditions
b) hinder the use of the land
c) if the persons entitled to the benefit:
- have approved
- will not be offended or wounded.
The Land and Conveyancing Law reform act states that freehold covenants should not bind successors in title and also states the possibility of application to court for an order discharging whole or part of a freehold covenant reason being that continued compliance with the covenant would interfere with the use and benefit of the land affected by it.
From all the above data it can be concluded that the rules governing the passing of benefits and burden of freehold covenants should be enunciated. If the rules are not enunciated they give rise to many problems among the covenantor and covenantee. Land is one of the scarce resources of production an so the laws regarding its allocation must be just and effective. For the rules governing the passing of benefits and burdens of freehold covenants just and effective the wordings of the covenant must be chosen very carefully. This will govern all the decisions to be undertaken related to the land. The these rules should be clearly stated and enunciated .Thus, its importance is immense. The laws should be enunciated taking in mind, the different situations faced by the parties of the covenant.
1) Jacobus, C.J. (2003). Real estate principles. Ohio: Thomson Learning.
2) Bruce, J.W., Giovarelli, R., Rolfes, L., Bledsoe, D., & Mitchell, R. (2006). Land law reform -achieving development policy objectives. Washington D.C.: The International Bank for Reconstruction and Developement/ The World Bank.
3) Etherton, J., Bridge, S., Hertzell, D., Horder, J., & QC, K.P. U.K. Department of law commission, Department of property and trust. (2008). 1) easements, covenants and profits À prendre (consultation paper No:186). Conquest House, 37-38 John Street, Theobalds Road, London WC1N 2BQ.: Government Printing Office. Retrieved from http://www.lawcom.gov.uk/easements.htm
4) Land And Conveyancing Law Reform Act 2009
5) The effect of s.56(1) of the lpa | law wiki. (2009, December 29). Retrieved from http://lawiki.org/lawwiki/The_effect_of_s.56(1)_of_the_lpa
 Charles J. Jacobus, Real Estate Principles, Thomson Learning , 2003, p.75.
 Re Ecclesiastical Commissioners for England’s Conveyance  Ch 430 cf. White v Bijou Mansions Ltd  Ch 351,  1 All ER 546 CA
 S 1(1) Contracts (Rights of Third Parties) Act 1999
 Rhone v Stephens (1994) 2 All ER 6
 Rogers v Hosegood  2 Ch 388; Renals v Cowlishaw (1878) 9 Ch D 125
 Federated Homes Ltd v Mill Lodge Properties Ltd  1 All ER 371
 the “word saving provisions” of S.78 of the Law of Property Act
 Roake v Chadha  3 All ER 503.
 S.78 of the Law of Property Act 1925
 Re Ballard’s Conveyance  2 All ER 691 cf. Wrotham Park Estate Co v Parkside Homes Ltd  2 All ER 321; Miles v Easter  Ch 611
 S.78 LPA 1925
 Newton Abbot Co-operative Society Ltd v Williamson and Treadgold Ltd  Ch 286,  1 All ER 279.
 Stilwell v Blackman  Ch 508  3 All ER 514, 84 LQR 29
 Re Pinewood Estate, Farnborough  Ch 280,  2 All ER 517
 Tulk v Moxhay (1848) 41 ER 1143
 LCC v Allen  2 KB 642
 Hall v Erwin (1887) 37 Ch D 74.
 Elliston v Reacher  2 Ch 374 and Reid v Bickerstaff  2 Ch 305; Dolphin’s Conveyance  Ch 654
 Jamaica Mutual Life Assurance Society v Hillsborough Ltd  1 WLR 1101
 Baker v Four Oaks Properties Ltd  Ch 816,  1 All ER 906; Re Dolphin’s Conveyance  Ch 654,  2 All ER 664; Elias & Co Ltd v Pine Groves Ltd (1993)
 The effect of s.56(1) of the lpa | law wiki. (2009, December 29).
 S 84(2) LPA 1925
 S 84(1) LPA 1925
 Land And Conveyancing Law Reform Act 2009
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