LLB220 Study Guide - Final Guide: Kerridge, High Court Of Australia, Crest Nicholson
Covenants over Freehold Land:
DEFINITIONS:
Coventee: individual whose land receives the benefit
Coventor: individual whose land bears the burden of the covenant
1. Is the burden a RESTRICTIVE COVENANT or negative easement (if easement look above)
Restrictive covenants – specific limit on the covenanters rights
Don’t meet the requirements of an easements – can’t form subject matter of a grant
Positive covenant
Limited circumstances in which this will be enforced beyond the original parties
Negative easements – require a very specific limitation on rights
2. Does the benefit run with the land in equity?
3. Have the substantive requirements of annexation of covenants been met?
a. Intention that the covenant run with the land – s 70 Conveyancing Act
Cannot be made for personal benefit, but to value the land and its successors
Common law:
oShown by words creating the benefit (Rogers v Hosegood)
oCovenant expressed in relation to persons (and successors) rather than land
will not show an intention (Renals v Cowilshaw)
Now applied by s 70(1) of Conveyancing Act:
oPresumed to have successors in mind
o‘persons deriving title under the covenantee’ – expansive definition that
allows all occupiers of the land to enforce the covenant
oMay expressly exclude passing the benefit to successors (Crest Nicholson
Residential Ltd v McAllistair)
oEngland has interpreted their provisions much more broadly, this question
has been left open in the Australian High Court (Forestview v Perpetual)
b. Covenant touches and concerns the land
Must touch and concern land at the date of creation
Cannot be personal in nature
Must affect mode, use or value
Must benefit the whole land (Re Ballard’s Conveyance)
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Document Summary
Coventor: individual whose land bears the burden of the covenant. Is the burden a restrictive covenant or negative easement (if easement look above) Restrictive covenants specific limit on the covenanters rights. Don"t meet the requirements of an easements can"t form subject matter of a grant. Limited circumstances in which this will be enforced beyond the original parties. Negative easements require a very specific limitation on rights: does the benefit run with the land in equity, have the substantive requirements of annexation of covenants been met? a. Intention that the covenant run with the land s 70 conveyancing act. Cannot be made for personal benefit, but to value the land and its successors. Common law: shown by words creating the benefit (rogers v hosegood, covenant expressed in relation to persons (and successors) rather than land will not show an intention (renals v cowilshaw)
