Freehold covenants

• Who is referred to as the covenantor in a freehold covenant?

  The covenantor is the person entering into the covenant, usually the buyer.
• Who is the covenantee in a freehold covenant?

  The covenantee is the person having the benefit of the covenant, usually the seller.
• What is a restrictive or negative covenant?

  A restrictive or negative covenant is an obligation imposed on land that is negative in nature, such as not to build more than one dwelling.
• What is a positive covenant?

  A positive covenant requires the covenantor to do an act, such as the obligation to erect or maintain a fence.
• Who can enforce freehold covenants?

  The original covenantee can always enforce covenants against the original covenantor.
• Can the burden of a positive covenant be passed to successors in title?

  No, the burden of a positive covenant is not passed to successors in title.
• How is the benefit of a restrictive covenant passed under common law?

  The benefit of a restrictive covenant is passed if it touches and concerns the land, and the parties intended for it to remain in effect after the property is sold.
• What must be true for a covenantee's successor in title to enforce a restrictive covenant?

  The covenantee's successor must hold the legal estate in the land to be benefited at the time the covenant was made.
• How can the buyer of benefitted land enforce a restrictive covenant in equity?

  By annexation, express assignment, or under the rules relating to building schemes/housing estates.
• What is required for the burden of a restrictive covenant to be enforceable in equity?

  The burden must relate to the land, and the covenantee must have owned the benefit of the land when the covenant was made.
• What happens if the title is unregistered regarding a restrictive covenant?

  If the title is unregistered, the covenant must be registered as a D(ii) land charge.
• What is a chain of indemnity in the context of positive covenants?

  A chain of indemnity allows the original covenantor and each successor in title to obtain an indemnity covenant from the next buyer, ensuring compliance with positive covenants.
• What can break the chain of indemnity?

  The chain of indemnity may become broken if a subsequent owner does not enter into a promise.
• How does the enforcement of a restrictive covenant differ from a positive covenant?

  A restrictive covenant can be enforced against successors in title, while a positive covenant binds only the original contracting parties.
• What is the significance of the phrase 'for the benefit of' in a covenant?

  This phrase indicates that the benefit of the covenant is intended to attach to the land.
• What is the primary difference between a restrictive covenant and a positive covenant?

  A restrictive covenant imposes a negative obligation, while a positive covenant requires an action to be taken.
• What is required for the burden of a restrictive covenant to run with the land?

  The burden must be intended to run with the land and relate to the land, not a personal right.
• What is the role of the servient and dominant land in enforcing a restrictive covenant?

  The servient and dominant land must be next to each other for the burden of the covenant to be enforceable in equity.
• What is the legal requirement for a positive covenant to be enforceable?

  A positive covenant binds only the original contracting parties.
• What happens if a restrictive covenant is attached to a right of way?

  The burden of a restrictive covenant may be enforceable if it is attached to a right of way/benefit.
• How does the enforcement of covenants differ in common law versus equity?

  In common law, the burden of a restrictive covenant is not enforceable against subsequent purchasers, while in equity it may be enforceable under certain conditions.
• What is the significance of the legal estate in the context of covenants?

  The covenantee must hold the legal estate in the land to be benefited at the time the covenant was made for enforcement to be valid.
• What is a D(ii) land charge?

  A D(ii) land charge is a registration requirement for a covenant if the title is unregistered.
• What is the purpose of a building scheme in relation to covenants?

  A building scheme is set up when an estate is built to make the covenants obvious and enforceable.
• How can the original owner pursue a new owner for breach of a positive covenant?

  The original owner can pursue the new owner for breach if they have obtained an indemnity covenant from the new buyer.
• What is the implication of a broken chain of indemnity?

  A broken chain of indemnity means that the original owner may lose the ability to enforce positive covenants against subsequent owners.