This document discusses the common law rules regarding the enforceability of covenants by and against successors in title. It defines key terms like covenant, covenantor, and covenantee. At common law, the benefit of covenants can pass to successors in title through express assignment or if the covenant touches and concerns the land. However, the burden does not pass at common law. The document explores some limited ways to circumvent this rule, such as through indemnity covenants or perpetually renewing covenants, but notes equity is needed to fully address the burden issue.

1. LLB Level 5 Land:
Freehold Covenants
Part 1
Sarah Wickham

2. Learning Outcomes
• Understand covenant terminology
• Understand the concept of enforcement of
covenants by and against successors-in-title of
the original parties
• Understand the common-law rules for passing
the benefit of a covenant to a successor-in-title
of the covenantee
• Understand the common-law rule on passing
the burden, and how this can be circumvented

3. Definitions
• Covenant – a promise generally made in a deed
• Positive or Negative/Restrictive
• Covenantor – person who makes the promise
• Covenantee – person who receives the benefit
of the promise
• Servient land – land which carries the burden of
the promise
• Dominant land – land which enjoys the benefit
of the promise

4. POSITIVE
POSITIVE AND NEGATIVE
• Ron covenants with Hermonie to build a
single storey dwelling
• Harry covenants with Hermonie not to build
anything other than a single storey dwelling
• Ginny covenants with Hermonie not to build
anything on the land without the consent of
the adjoining owner
NEGATIVE

5. REMEMBER!
A positive covenant can NEVER
be an interest in land and does
not run with land

6. Enforceability
Malfoy Crabb

7. Enforceability by the
Original Parties
The ordinary rules of
Privity of Contract apply

8. Enforceability against Successors in Title
Malfoy
Covenantee
Crabb
Covenantor
Bellatrix
buys
servient
land
Neville
buys
dominant
land
?

9. What do we need to look at?
• Rules for passing benefit at common law
• Rules for passing burden at common law
• Rules for passing benefit in equity
• Rules for passing burden in equity
NB in practice/exams, Equity first… but
for teaching, Common Law first

10. Passing benefit at common law
1st method
EXPRESS
ASSIGNMENT
s136 LPA 1925
In writing
Notice of assignment must be
given to covenantor

11. Passing benefit at common law:
2nd method
P A Swift Investment v
Combined English Stores Group plc
[1989] AC 632
Touch and concern land
Parties intended the benefit
to pass
Original covenantee must
have held legal estate
Successor in title to
covenantee must hold legal
estate

12. • For the benefit of the land: only benefits
estate owner while they own the estate
• Not expressly personal
• Affects the nature, quality, use or value of
the benefitted land
1. Touch and concern land

13. • Express wording of covenant
– “…for the benefit of land known as…”
• Implied by s.78(1) LPA 1925
– “a covenant relating to any land of the covenantee
shall be deemed to have been made with the
covenantee and his successors in title and the
persons deriving title under him…”
2. Parties intended the benefit
to pass

14. • S.1(1) LPA 1925
• No benefit can pass at law where
covenantee has only an equitable interest
in dominant land
3. Original covenantee must
have held legal estate

15. Smith and Snipes Hall Farm Limited v
River Douglas Catchment Board
[1949] 2 KB 500
3. Successor in title to
covenantee must hold legal
estate

16. Enforceability against Successors in Title
MALFOY CRABB
Neville

17. Enforceability against Successors in Title
Malfoy
Covenantee
Crabb
Covenantor
Bellatrix
buys
servient
land
Neville
buys
dominant
land
?

18. Does the burden pass at
Common Law?
NO!!!
Austerberry v Oldham Corporation 1885
Rhone v Stephens 1994
Original covenantor remains liable
-s79 LPA 1925
-Tophams Ltd v Earl of Sefton
-but damages only

19. Ways to circumvent the
common law rule on ‘burden’
• Chain of Indemnity Covenants
–These do not pass the burden!
–Provide a means of recovering outlay for
someone else’s breach
• Perpetually renewing covenant
• Halsall v. Brizell [1957] Ch 169

20. Circumventing the common law
rule on ‘burden’
• Halsall v Brizell
– cases
• Rhone v Stephens
• Thamesmead Town
Limited v Allotey
£

21. Summary of Common Law position
• Common law will pass benefit of all covenants
– S.136 LPA 1925
– P.A. Swift Investment
• It will not pass burden of any covenants
• The ways to circumvent the burden problem are
limited and deficient:
– Indemnity covenants
– Halsall v Brizell
• We need equity’s help!