Land Law

Ninth edition

by Mark Davys

Suggested Answer to Exercise 9.3 (Part 2)


Planning Your Answer

Issues

  • Who can enforce the covenants made by Phil?
  • Who is bound by these covenants?
  • What remedies are available to enforce the covenants?
  • Can the covenants be discharged or modified?

Although the facts in this exercise are relatively straightforward, it may still be helpful to use a diagram to illustrate the relationships between the parties.

Rules

  1. Covenants bind the original parties. A party may be ‘privy’ to the covenant by being expressly named or by virtue of section 56 of the LPA 1925 (benefit only)
    See Land Law, Section 9.7.
  2. The benefit of a covenant can run at common law and in equity. However, the burden of a covenant cannot run at law. Only the burden of a restrictive covenant can run in equity.
  3. For the burden of a covenant to run in equity the covenant must:
    • be restrictive;
    • benefit the land;
    • have been intended to run with the land; and
    • be protected by registration as a land charge (unregistered land) or by an entry on the Register (registered title).
      See Land Law, Section 9.5.1.
  4. For the benefit to pass in equity, the claimant must establish that the benefit was annexed or assigned, or that the covenant was part of a scheme of development.
    See
    Land Law, Section 9.5.2.
  5. As restrictive covenants are equitable interests, only equitable remedies are available to the courts.
    See
    Land Law, Section 9.8.
  6. It is possible to apply for a covenant to be modified or discharged under section 84 of the LPA 1925, as amended by section 28 of the LPA 1969.
    See
    Land Law, section 9.9.

Answer Plan

  1. Introduce the issues, the key concepts and why they are important.
  2. Was Barry a party to the covenants by virtue of section 56 of LPA 1925?
    (Is Barry still alive?)
  3. Not to build more than one house… (negative)
    1. Original parties.
    2. Burden can run in equity - has it run to Rita?
    3. Has the benefit passed to Yehudi (and will it pass to Barry’s successor in title)?
    4. Remedies: injunction.
  4. To erect and maintain the fence… (positive)
    1. Burden cannot run at common law or in equity.
    2. Benefit may run at common law - has it?
    3. Remedies: damages against Phil.
  5. Is Rita likely to succeed if she asks for the covenants to be discharged?
  6. Make sure that you have stated your conclusions and that these conclusions follow logically from your reasoning.

Before you go to the next page, prepare a more detailed answer plan, including references to relevant cases and statutes.


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