when I was studying landlord I often found the idea of Freehold covenants to be quite difficult to get my head around and I think the reason for that is because there are just so many variables involved we have the idea of a covenantor and a covenantee also the ideas of common law and Equity being distinct and also the different types of covenants so positive covenants and negative covenants as well in this lecture we're going to try and explore all of those in detail and hopefully help you to combine them ahead of any coursework or exam so with that in mind let's get started as I mentioned in the introduction the first thing that we want to do is distinguish the different types of people involved and this will be especially important in a problem type scenario so in this situation we have a woman who is the land owner and often in most circumstances she will decide to sell off part of her land to someone else the gentleman in this case so that gentleman then is the owner of the Freehold title but as part of that transaction there may be a covenant or a promise that's involved so in this situation we have the woman telling the man I'll sell you this piece of land but as a part of that you're going to have to mow my lawn so the man in this situation is the covenantor or the promisor the person who is making the promise to the landowner and they are seen as having the burden of the Covenant obviously then he mows this lady's lawn and the lady is regarded as the covenantee she gets the benefit which in this circumstance would just be having her lawn mode so that's the basic idea behind it but one of the key questions is what happens when one of the original owners moves on and this is the sort of circumstance that will often come up up in a problem question and it's the idea of covenants running with the land and in particular the benefit of a covenant or the burden of a covenant and how that can run so to do this we have to look at the distinction between common law and Equity now in common law we have the idea of privity of contract in other words if I make a contract with another person then that contract is just between me and that person so if another person gets involved say uh someone else who takes over the land then the basic idea is that they should not be found by a contract that I have made with another person so with this in mind the burden generally does not pass in common law and we can look at the case of osterbur and Corporation of alen for that however the benefit can generally pass in common law and the case for this is Smith and Snipes Hall Farm limited and River Douglas catchment board in 1947 so that distinction is already coming into Play Between the burden and the benefit especially in common law however we do also have to look at equity and the main case in this area is the case of tolken MOX in 1843 and the picture I've put there is of Leicester Square in London because this case concerned a covenant in Lester Square saying that you couldn't build anything in leester square um and it was held in this case that the burden can actually pass as the purchaser will have notice of it obviously the courts didn't want people run L building stuff in the middle of Leicester Square and so that burden was allowed to pass and we'll talk about notice in a little bit but the problem with tulk and MOX was that this was very broad the idea that all burdens and all covenants um should be able to pass and so another distinction had to be made um and we will look at this now and that's the the distinction between positive and negative covenants so a positive Covenant is is that the covenantor has to actively do something often involves the paying of money but it might not necessarily be that so we saw the example of mowing my lawn at the very start that would be a positive Covenant because the person has to actively do something a negative or a restrictive covenant on the other hand is where you're preventing someone from doing something so the idea that you um shouldn't build on the land as we saw in tlk and Moxy so let's have a look at these positive covenants first where someone actually has to do something and the burden of a positive Covenant cannot pass in common law and it only passes inequity in very specific um circumstances and these are the circumstances in holol and Brazil in 1957 and we're looking here for reciprical burdens and benefits so you might imagine that if you live on a housing estate for example there might be a covenant in place where you have to pay for the upkeep of say a road now obviously that's a positive Covenant because you're having to pay money for the upkeep of the road but you're also getting a benefit out of it as well because the road is being maintained and you are probably using that road in some way and so uh even there is a reciprocal burden and also a benefit as well however there's no effect where the owner has no choice whether to accept the burden and this really limits the effect of the case of Hol and Brazil that comes from Lord templeman in Ron and Stevens back in 1994 so these circumstances surround the um burden passing on in a positive Covenant in equity is really actually quite limited however there has been some debate about whether it should be expanded and this is often the sort of thing that will come up in essay question in this area and for that we can look at a law commission report that was put out in 2011 that talked about replacing the idea of covenants with more about the idea of General land obligations so if that's something that you think might come up in your exam I definitely recommend going away and looking at that law commission report so negative Covenant is probably where the main thing comes in and inequity several requirements have to be met for the burden to actually be transferred so we're talking about the burden in relation to negative cover um inequity however these um criteria are actually quite easily satisfied and so the burden inequity can actually be transferred relatively easily so let's have a look at those the Covenant must touch and concern the land well that's true of most covenants it does have to concern the land it's not really a covenant whatsoever if it's a personal obligation so how about if in our original example the person had said instead of mowing my law you have to do my shopping for me well that's not really related to the land in any way and so it's a personal um obligation rather than a freehold Covenant as we would describe it there also has to be proximity so the dominant land has to actually be able to benefit again relatively easily satisfied in most cases we can look at Kelly and Barrett as the case for that there also has to be an intention for the burden to actually run with the land that's presumed though by section 7 9 of the law of property act 1925 it is possible to go against that intention but generally speaking that intention is presumed and finally the Covenant does actually have to be registered so we talked earlier about the idea of a person having notice of the Covenant and for unregistered land that's simply done through a class D2 land charge and in most circumstances nowadays it's going to be in relation to registered land and so we're just registering a notice on the title under sections 32 and 33 of the land registration act 2002 so that's the burden passing and we see that that's relatively straightforward and not too problematic um the benefit of a NE negative Covenant can run and that only applies in three particular situations so we're going to have a look at those now the first of the these is annexation which is possibly the most common and this is the idea the benefit is permanently attached to the land so it doesn't matter who the owner is they will always get the benefit of it because it's annexed to the land itself it's associated with the land so the the Casal in this area used to be a little bit confusing but it was tidied up a lot by the Federated homes case which basically interpreted section 79 of the law of property act 1925 so that if the Covenant touched the land and the dominant land was identified then the annexation would be automatic so we've got two criteria there for annexation but once they're met we have this permanent attachment between the Covenant and the land next time that a a benefit can actually be transferred is assignment and this is not too different from annexation um and it's basically if the Covenant has not been annexed when it was created then it can be expressly assigned to the land um at a later date um so the conveyance and the assignment of the Covenant to a particular land must be simultaneous we've got reunion of London case for that and but once that assignment occurs it effectively acts in the same way as an annexation of the Covenant and the land so there's that permanent association between the two finally we have schemes of development and this is where you might sell off a plot of land in order to build a lot of houses say for example a housing estate might be the most common one and in this particular circumstances you're effectively having a covenant or a benefit of a covenant that runs right across the housing estate and in order for that to occur there are two criteria again so the area must be properly identified so we have to clearly delineate where the housing estate is and also the intention of reciprocal enforcement of obligations as well so in the same way that we talked earlier about if we're maintaining a road on a housing estate and everyone is getting the benit benefit of that then we have that recip reciprocal enforcement of obligations so before we finish we also have to talk about third party rights as well at the moment we've really just talked about the relationship between the Covenant or and the Covenant and so we can see that on the example here where the Covenant has clearly sold off part of their land and the Covenant tour has got that land now or has the Freehold title to it but has made promises to the Covenant e but what about people who might be affected who are not within those um that direct relationship but might have land which is next door as we see here with the third party well section 56 of the law of property act enables a person who is not party to a covenant to sue upon it where firstly the Covenant reports to be made with that person and we've got the case of lias and prow developments for that and the Covenant is clearly identifiable and that doesn't necessarily having to mean having to name them but that third party land has to be sort of clearly identified within the context of the Covenant so we've got re ecclesiastical commissions for England's conveyance for that one of the other main developments in this area in the past to 20 years or so has been the contracts rights of third parties act 1999 in particular we have section 13 which which basically says that if the third party is not necessarily identifiable they still can sue if the contract was made for their benefit and so we have the idea of third party rights here um but those are perhaps limited um within particular circumstances and it's important to look at that section one of the 1999 act to make sure that you're applying it correctly so we also have to think about the remedies as well what happens if someone goes back on their promise or doesn't actually do something what remedies are available and again if you're answering a problem question this is definitely something where you can pick up a lot of marks people tend to forget about it and it's relatively easy to do so perhaps the most common approach will be to get an injunction against a person because they are either not doing something or they're doing something that they shouldn't be in contravention of a covenant and they'll want the court to basically step in and either make them do something or make them stop doing something so we have qu timate injunction which is basically if you think that someone is about to breach a covenant you can get the court to step in and make sure that they don't and we can have an injunction to prevent the continued breach of a covenant as well so while it's going on and also a mandatory injunction as well which is where you're basically forcing someone to do something um making sure that they do something for a positive Covenant would be the best example there are going to be occasions though where an injunction is not correct or the correct um way to achieve a remedy and these are particularly in the circumstances of shelfer and city of London electric lighting company so it might be too burdensome to actually impose an injunction and so in those circumstances the court may decide that it's actually more appropriate to give the uh injured party damages so it's it's important to look at that shelf for case um just to make sure that you know the circumstances um but damages are certainly a possibility where an injunction uh is too onerous or should not apply finally what about if we want to actually get rid of a covenant and I've not really put it on this slide but also what about if you want to modify a covenant as well well you can go to the upper tribunal the lands chamber under Section 84 of the law of property Act there are four grounds on which you can discharge a covenant firstly the Covenant has simply become obsolete um secondly is a little bit more complicated so we have that the idea that continued enforcement of the Covenant is firstly obtrusive to a public or a private use of land it's of no practical benefit or is contrary to the public interest and if necessary then it is comp compensable by money um so we have go back to that idea of Damages and whether that can actually be appropriate in some circumstances thirdly it's quite easy all those entitled to the benefit consent to the discharge and finally the discharge confers no injury on the person benefiting so if there's not really a benefit there then they will be absolutely fine with discharging that Covenant so as mentioned covenants can actually be a very sort of difficult area and it can become very convoluted especially if you're dealing with this as part of a problem question I think that if this does come up as a problem question you just have to sort of breathe take a minute and write quite a decent Plan before you actually start writing your answer properly so you might want to start by thinking about who are the different people involved so identifying say the covenantor and the Covenant and thinking about who is making a promise from one person to another once you've got that you can start to think about circumstances where the land is changing hands so perhaps this Covenant or that we've got up at the top here sells their land to another person and so the question is is this new owner of the land are they still Bound by that promise that the original person made so again that can apply to the Covenant as well and thinking about whether the benefit is running and whether the new person who owns the land is also able to um get the benefit as well once you've done that and you've got an idea about who the different people are and what their roles are in relation to being a covenantor or a covenantee whether they've got the benefit or the burden of a covenant you can start to think about some of those other factors as well in particular thinking about whether we're dealing with Co um common law or equity and also thinking about the type of Covenant we're dealing with is this a positive Covenant where someone is obliged to actively go out and do something like mow a lawn or build houses on a particular piece of land or is it a negative Covenant where someone has to actually stop doing something or refrain from doing something should they not be building on the land and how does that have a different effect in different circumstances well I hope you enjoyed this lecture if you did make sure to leave it like And subscribe uh for more videos in the future if you do have any questions about this area and I know that is a little bit complicated um make sure to leave those in the comments below and I'll definitely try and get back to you thanks very much for watching bye