Chapter 12 Scenario questions

. Pasha is the freehold owner of orchard land called 'The Braeburns'. He sold part of this land, 'The Oaks', to Quentin. The conveyance contained a clause under which Quentin covenanted with Pasha and any successor to pay 50% of the costs of landscaping and maintaining the soil quality of 'The Oaks'. Quentin has since sold 'The Oaks' to Rushi who has refused to pay anything towards landscaping or the soil quality. Pasha seeks your advice as to whether the covenant is binding on Rushi. Which one of the following most accurately reflects the position as to the enforceability of this covenant?

The covenant is positive in nature. The burden of a positive covenant is automatically binding on successors of the original covenantor. Rushi is therefore bound to make the contribution.

The covenant is negative in nature and, as such, not capable of binding successors of the original covenantor. Rushi is not bound to make the contribution.

The covenant is positive in nature. The burden of a positive covenant cannot pass at law or in equity and so Rushi is not bound to make the contribution.

The covenant is positive in nature. The burden of positive covenants can only pass in equity under the rule in Tulk v Moxhay (1848).

. Stan is the freehold owner of land called 'The Marshes'. He sold a part of this land to Tim and the conveyance contained a clause under which Tim covenanted with Stan and his successors 'not to carry on any business, trade, or profession from the land'. Tim has since started selling second-hand cars from the land and Stan wishes to enforce the covenant to prevent this trade. Which one of the following most accurately reflects the position as to the enforceability of this covenant?

In order for the burden of this covenant to be binding on Tim, it must be shown (1) that the covenant touches and concerns the land; (2) that there is land capable of benefiting from the covenant; (3) that the burden of the covenant was intended to run with the land; and (4) relevant registration requirements have been met.

In order for this covenant to be binding on Tim, it would need to be shown that the burden of this covenant has passed to Tim. This is a positive covenant and therefore is not enforceable against successors either at law or in equity.

In order for this negative covenant to be binding on Tim, it would need to be shown that the burden of this covenant has passed at law. The burden of this covenant cannot pass in equity.

In order for this negative covenant to be binding on Tim, it would need to be shown that the benefit of this covenant has passed in equity. This can be done by way of s. 78 of the LPA 1925.

. Anita decided to purchase a plot of land comprising part of a larger estate owned Barry. The sale contained a covenant by Anita under which she promised to contribute to the cost of upkeep of a driveway shared with Barry. Anita has since sold her plot to Cindy and Barry has sold his land to Darik. Darik, as successor to Barry, wants Cindy, as successor of Anita, to pay her contribution to maintenance of the driveway Cindy refuses. Which one of the following statements most accurately reflects the position as to the enforceability of the covenant as between these two successors?

As successors of the original parties, the covenant is not enforceable between Darik and Cindy.

As successors of the original parties, the covenants are automatically enforceable between Darik and Cindy.

As successors of the original parties, for the covenant to be enforced, it must be shown that the benefit of the covenant has passed to Darik and the burden of the covenant has passed to Cindy. This cannot be demonstrated on our facts, however, as the covenant is positive and the burden of a positive covenant cannot run either at law or in equity.

As between successors of the original parties, it must be shown that the benefit of the covenant has passed to the intended claimant (here Darik) and also that the burden of the covenant has passed to the intended defendant (here Cindy). This cannot be demonstrated directly as the burden of a positive covenant cannot pass at law or in equity. However, this covenant could be enforceable indirectly via the doctrine of benefit and burden which appears to apply on these facts.

. Eric is the owner of a large estate. He divides the land into a series of plots to be sold off individually to different buyers but with each conveyance containing identical covenants under which the buyers promise not to build houses above two storeys high on their respective plots of land. The land, divided into plots, is designed to form a 'residential zone'. How might this covenant be enforceable as between all the new plot owners in this scenario? Select one of the following.

There is no way to ensure that this covenant is enforceable as between all plot owners in this case. It would need to be shown that each covenant is separately enforceable and this is not possible as the covenant is negative in nature.

The easiest way for the covenant to be enforceable between all plot owners is to ensure that in each and every conveyance, the benefit of the covenants is expressly assigned to each new buyer individually.

The easiest way for the covenant to be enforceable between all plot owners is via a scheme of development or building scheme which will operate like a 'local law' provided that the residential zone is laid out in well-defined plots, that each buyer is subject to the same obligations, and there is a common intention that all plot owners are to be subject to the same mutual covenant.

The easiest way for the covenant to be enforceable between all plot owners is via implied annexation.

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