Suggested Answer to Exercise 9.3 (Part 2)
Planning Your Answer
- 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.
- 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.
- 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.
- 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.
- 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.
- As restrictive covenants are equitable interests, only equitable remedies are available to the courts.
See Land Law, Section 9.8.
- 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.
- Introduce the issues, the key concepts and why they are important.
- Was Barry a party to the covenants by virtue of section 56 of LPA 1925?
(Is Barry still alive?)
- Not to build more than one house… (negative)
- Original parties.
- Burden can run in equity - has it run to Rita?
- Has the benefit passed to Yehudi (and will it pass to Barry’s successor in title)?
- Remedies: injunction.
- To erect and maintain the fence… (positive)
- Burden cannot run at common law or in equity.
- Benefit may run at common law - has it?
- Remedies: damages against Phil.
- Is Rita likely to succeed if she asks for the covenants to be discharged?
- 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.