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Land Law – Passing the Burden of Covenants in Equity between successors in title
Equity alone allows the imposition of restrictive covenants. You can therefore be certain that the question is false if it discusses the obligation of a positive covenant being passed in equity. As we shall discuss later in this chapter, the only advantage that can transfer in equity is the benefit of a restrictive covenant.
For the burden of a restrictive covenant to "run with the land," or transfer to a successor in title, four requirements must be met. These are:
-Negative, or restrictive, covenants are required.
-At the date of the covenant, the covenantee retained land which was benefited by the covenant.
-The land must be "touched and concerned" by the covenant.
-The burden of the covenant must be intended to run with the land.
Case example
Maria purchased a plot of open land from Jonathan in the middle of a crowded city. The conveyance for the sale specified that the open space had to be kept "uncovered with any buildings in neat ornamental order" in order to protect the site for recreational uses. Later, Maria sold to Michael the land. Michael knows about the covenant when he bought the property, but he refuses to acknowledge it and moves forward with plans to develop. After that, Jonathan files a lawsuit against Michael in an effort to stop the planned violation.
Is it possible for Jonathan to request an injunction based on the argument that Michael, Maria’s successor in title, was required to abide by the restrictive covenant?
The details of Tulk v. Moxhay [1848] are as follows. Michael was found to be in equity bound by the restricted covenant by the court. This was justified by the fact that Michael, as the land's heir in title, had been informed of the covenant's existence and that it was meant to run alongside the land. As a result, Michael was prohibited from building on the property under the equitable restrictive covenant. The four requirements that need to be fulfilled in order for the burden of an equitable restrictive covenant to transfer to a successor in title were also established by this case and are listed above.
We will now examine those conditions in the following manner:
The covenant ought to be of a negative kind.
Negative covenants, as we already know, prohibit a party from using the land for certain purposes. Positive covenants will not transfer in equity.
The land that benefited from the covenant was retained by the covenantee as of the covenant's date.
A person will not be able to enforce the covenants in equity if they own a sizable tract of land but sell it all off and leave no land left that benefits from them.
Case example
The Local Authority granted Mr. Allen a large parcel of land in exchange for a pledge not to build on a smaller portion of the property. After that, Mr. Allen sold the land to his wife, who started building on the whole area, even the tiny portion that was subject to the covenant. Is Mrs. Allen subject to the Local Authority's enforcement of the restrictive covenant?
The facts of London CC v. Allen [1914] are as follows. Due to their lack of ownership of land that benefited from the covenant at the time it was given, the Council was unable to enforce it. This might have contributed to the creation of construction schemes.
The land must be "touched and concerned" by the covenant.
If a covenant is not personal in character and it relates to how the property is used or valued, it will "touch and concern" the land. For example, if the area benefiting from a restriction covenant was 100 miles away from the burdened land, then the covenant would be of no service if it stated that noise levels were to be kept to a minimum between 11 pm and 6 am. The noise would never be heard by anyone on the benefitting land.
The covenant's obligation must be meant to run alongside the covenantee's land.
Equity alone allows the imposition of restrictive covenants. You can therefore be certain that the question is false if it discusses the obligation of a positive covenant being passed in equity. As we shall discuss later in this chapter, the only advantage that can transfer in equity is the benefit of a restrictive covenant.
For the burden of a restrictive covenant to "run with the land," or transfer to a successor in title, four requirements must be met. These are:
-Negative, or restrictive, covenants are required.
-At the date of the covenant, the covenantee retained land which was benefited by the covenant.
-The land must be "touched and concerned" by the covenant.
-The burden of the covenant must be intended to run with the land.
Case example
Maria purchased a plot of open land from Jonathan in the middle of a crowded city. The conveyance for the sale specified that the open space had to be kept "uncovered with any buildings in neat ornamental order" in order to protect the site for recreational uses. Later, Maria sold to Michael the land. Michael knows about the covenant when he bought the property, but he refuses to acknowledge it and moves forward with plans to develop. After that, Jonathan files a lawsuit against Michael in an effort to stop the planned violation.
Is it possible for Jonathan to request an injunction based on the argument that Michael, Maria’s successor in title, was required to abide by the restrictive covenant?
The details of Tulk v. Moxhay [1848] are as follows. Michael was found to be in equity bound by the restricted covenant by the court. This was justified by the fact that Michael, as the land's heir in title, had been informed of the covenant's existence and that it was meant to run alongside the land. As a result, Michael was prohibited from building on the property under the equitable restrictive covenant. The four requirements that need to be fulfilled in order for the burden of an equitable restrictive covenant to transfer to a successor in title were also established by this case and are listed above.
We will now examine those conditions in the following manner:
The covenant ought to be of a negative kind.
Negative covenants, as we already know, prohibit a party from using the land for certain purposes. Positive covenants will not transfer in equity.
The land that benefited from the covenant was retained by the covenantee as of the covenant's date.
A person will not be able to enforce the covenants in equity if they own a sizable tract of land but sell it all off and leave no land left that benefits from them.
Case example
The Local Authority granted Mr. Allen a large parcel of land in exchange for a pledge not to build on a smaller portion of the property. After that, Mr. Allen sold the land to his wife, who started building on the whole area, even the tiny portion that was subject to the covenant. Is Mrs. Allen subject to the Local Authority's enforcement of the restrictive covenant?
The facts of London CC v. Allen [1914] are as follows. Due to their lack of ownership of land that benefited from the covenant at the time it was given, the Council was unable to enforce it. This might have contributed to the creation of construction schemes.
The land must be "touched and concerned" by the covenant.
If a covenant is not personal in character and it relates to how the property is used or valued, it will "touch and concern" the land. For example, if the area benefiting from a restriction covenant was 100 miles away from the burdened land, then the covenant would be of no service if it stated that noise levels were to be kept to a minimum between 11 pm and 6 am. The noise would never be heard by anyone on the benefitting land.
The covenant's obligation must be meant to run alongside the covenantee's land.
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