Chapter 13 Key facts checklists

Freehold covenants

All freehold covenants are enforceable between the original covenanting parties based upon principles of contract law.
Where successors in title to the original covenanting parties wish to enforce covenants, they must establish the burden and benefit of the covenants passed to them.
Whilst common law may pass the benefit of a covenant to a successor of the dominant land (express or implied), it will not pass the burden of any covenant to a successor of the servient land.
Equity will pass the burden of a covenant to a successor of the servient land but only where the four requirements developed from Tulk v Moxhay (1848) are met. This is limited to restrictive covenants.
Where the burden of a covenant has passed to a successor in equity, the benefit must also pass to a successor of the dominant land in equity.
A benefit of a covenant may pass in equity in one of three ways: annexation, express assignment, or under a scheme of development.
Following the decision in Federated Homes Ltd v Mill Lodge Properties Ltd [1980], the benefit of a covenant will typically pass by statutory annexation, unless expressly excluded by the parties.
The burden of positive covenants will not pass to a successor of the servient land whether at common law or in equity. Whilst common law has developed ways to circumvent this problem and make positive covenants enforceable against successors, whether directly or indirectly, such methods are of limited application.