LLB220 Study Guide - Final Guide: Main Page, Fide, All England Law Reports
SERVITUDES OVER LAND PT 2:
RESTRICTIVE COVENANTS
Does the burden of the covenant run with
the land?
The burden of a covenant does not run at
law (Austerberry v Oldham Corporation
(1885) 29 ch D 750)
But does run in equity (Tulk v Moxhay
(1848) 2 Ph 774) provided that:
1. Negative in substance
2. Benefits (touches and
concerns) covenantee’s land
3. Burden is intended to run with
land (but note CA s 70A)
4. Successor in title is not
BFPVw/oN
5. At the time of entry,
covenantee owned land
6. CA s88(1) details are clearly
indicated
1. Covenant is negative in nature
Does the successor in title to the
covenantor have to do anything or expend
any money in order to comply with the
covenant?
Look to substance not form (Shepherd
Homes v Sandham (No 2) [1971] 2 All ER
1267)
Rhone v Stephens [1994] 2 WLR 429
2. Covenant benefits (touches and
concerns neighbouring land
“The covenant must either affect the land
as regards to the mode of use or
occupation of the land or the value of the
land” (Rogers v Hosegood [1900] 2 Ch
388). As long as it does not just benefit the
covenantee personally.
Conduct of competing business (Clem
Smith Nominees v Farrelly (1978) 20
SASR 227)
A covenant which prevents the covenantor
carrying on a business which competes
with any business conducted on the
covenantee’s land also touches and
concerns the land, provided that it
enhances the value or enjoyment of the
benefited land (Newton Abbott Co-
Operative Society v Williamson &
Treadgold [1952] Ch 286).
Benefited land must not be too large
-Re Ballard’s Conveyance [1937]
Ch 473
Subdivision of benefited land
Distance between land benefited and land
burdened
3. Burden of covenant intended to run
with land
Binds successors in title as well as
covenantor
But – s 70A(1) CA raises this presumption
4. successor in title is not BFPV w/o N
(the successor in title must have notice
to be bound)
Purchaser of burdened land who takes
without notice of the covenant is not
bound by the covenant
Notice includes actual and constructive
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Document Summary
The burden of a covenant does not run at law (austerberry v oldham corporation (1885) 29 ch d 750) But does run in equity (tulk v moxhay (1848) 2 ph 774) provided that: negative in substance. Benefits (touches and concerns) covenantee"s land: burden is intended to run with land (but note ca s 70a, successor in title is not. Bfpvw/on: at the time of entry, covenantee owned land, ca s88(1) details are clearly indicated, covenant is negative in nature. Homes v sandham (no 2) [1971] 2 all er. Rhone v stephens [1994] 2 wlr 429: covenant benefits (touches and concerns neighbouring land. The covenant must either affect the land as regards to the mode of use or occupation of the land or the value of the land (rogers v hosegood [1900] 2 ch. As long as it does not just benefit the covenantee personally. Distance between land benefited and land burdened: burden of covenant intended to run with land.
