Chapter 11 Audio: How to answer freehold covenant questions

Freehold Covenants

How to answer freehold covenant questions

Audio titled: Chapter 11 Audio: How to answer freehold covenant questions

In this audio I want to talk to you about how to answer freehold covenant questions. We're concerned with covenants; those are promises made by deed but also covenants that arise in relation to freehold land. Covenants are promises made by deed by one landowner in relation to another's land. For example, I promised to paint the fence between mine and your property. Or I promise not to run a business from my land.

The heart of covenants is this idea that one piece of land is burdened - we call that the servient land, shouldering the burden of the covenant. Another piece of land is benefiting, and we call that the dominant land and that land gets the benefit of the covenant.

Now, like much of the Land law course--and you'll see this throughout the book--we need to draw a distinction between law and equity, and covenants is no different. So, when it comes to considering, for example, the enforceability of a particular covenant, how are we going to determine this issue? Well, we need to consider, what I call in the book, the four dimensions of covenants: Law, Equity, Benefit, and Burden.

So, how do you answer a covenant’s question? Well, the first thing you need to know is this--and there are two central issues here; this will help you decide if a covenant is enforceable. Firstly, you have to show that the benefit of any covenant has passed to the would-be claimant so that the claimant can enforce the covenant. And secondly, you have to show that the burden of the covenant has passed to the intended defendant so that that defendant is bound by the covenant.

Only if the claimant has the benefit of the covenant and the defendant is burdened by the covenant, can that covenant be enforced.

Thereafter you'll find quite distinct rules on the passing of the benefit and the burden. You'll see there are rules at law, legal rules and there are equitable rules, rules arising in equity. Generally speaking, you should not mix the rules. So, for example, if you use the legal rules for passing the benefit, you should also use the legal rules, or attempt to use the legal rules, to pass the burden.

Note crucially that, for example, at law, the burden of a covenant cannot pass, which then means you would need to move to consider the equitable rules, which are generally more flexible and easier to demonstrate.

So, step back for a moment. When answering freehold covenant’s questions, don't lose sight of that central issue: has the benefit passed to the claimant, under either the legal or the equitable rules? And secondly, has the burden passed to the defendant?

Be prepared to use the equitable rules more as I've explained, certainly more than the legal rules because they are more flexible. And return to the textbook coverage of this idea of four dimensions of Law and Equity of Benefit and Burden.

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