Edwin owned the registered freehold title to an estate of 80 acres known as Whiteacres. In 1999, Edwin sold an acre of Whitecacres called Redacre, to Rufus. Rufus covenanted with Edwin of Whiteacres in the transfer:

Introduction

Covenants are promises made by Deed and create equitable interests in land. These covenants can be negative or positive.

The parties

Edwin is the owner of the registered freehold title to ‘Whiteacres’. Rufus has purchased 1 acre of Whiteacres (‘Redacre’) with the covenants. Charles has purchased 1 acre of Whiteacres (‘Blueacre’). Rob has purchased Redacre from Rufus in 2006. The original covenantor is Rufus. The new purchaser of Redacre, Rob is breaking the covenants. This is important to establish liability under the original covenant. The original covenantee is Edwin. Moreover, the benefit of the covenant has also passed to Charles as the purchaser of Blueacre. Charles will have to prove that the benefit under the original covenant has passed to him. Whiteacres is the dominant estate. Redacres is the servient estate.

The nature of the covenants

Covenants can be positive, which involve expenditure or performance of some service. Positive covenants generally do not run with the land. Therefore these cannot be passed to the successor in title. Covenants can be negative, which regulate the use of the property. These covenants run with the land under equity but not under common law. In common law, the doctrine of privity of contract is applied. Under this doctrine, the successor in title does not get the burden as he did not originally enter into the covenant. The following covenants have been entered into by Rufus.

(i) to use Redacre for agricultural purposes only

This is a negative covenant. As this is a negative covenant, it can be enforced in equity as against Rufus as well as Rob. It cannot be enforced against Rob in common law.

(ii) to maintain the fencing around the plot in good repair

This is a positive covenant. This cannot be enforced in equity against Rob.

(iii) to contribute towards the cost of maintaining the sea wall which protects all Whiteacres and Redacre from flooding

This is a positive covenant. This cannot be enforced in equity as against Rob.

(iv) to never keep bees at Redacre

This is a negative covenant. This can be enforced in equity as against Rufus and Rob. It cannot be enforced against Rob under common law.

Passing of burden: Common law and equity

2.1 To use the property for agricultural purposes only and to not keep bees at Redacre: Burden in common law and equity for negative covenants

Common law

Under the common law, burden cannot pass from Rufus to Rob as the covenant has privity to contract. Thus Rob is not a successor in title to the burden from Rufus. This is true for both positive as well as negative burdens (Austerberry v Oldham Corp).

Equity

In equity, the burden may pass from Rufus to Rob if the following conditions are satisfied:

• The covenant has to be negative (Haywood v Brunswick Permanent Benefit Building Society). If both positive and negative covenants are made, then the negative burdens must be separated from the positive in order to pass in equity (Shepherd Homes v Sandham).
• The covenant must benefit the dominant land (Kelly v Barrett).
• The covenantee must have retained the land for the benefit of which the covenant was made at the time of entering into the covenant and after (London County Council v Allen).
• It must be the common intention of the parties that the burden of the covenant should run with the land of the covenantor. LPA 1925, s.79 presumes this intention unless it is specifically excluded (Re Royal Victoria Pavilion).
• As these are negative covenants, the burden will pass to Rob under equity and these covenants can be enforced against him. Under the common law, burdens will not pass to Rob because of privity of contract.

To contribute towards the cost of maintaining the sea wall which protects all Whiteacres and Redacre from flooding and to maintain the fencing around Redacre: Burden in common law and equity for positive covenants

Common law

Under the common law, burden cannot pass from Rufus to Rob as the covenant has privity to contract. Thus Rob is not a successor in title to the burden from Rufus. This is true for both positive as well as negative burdens (Austerberry v Oldham Corp).

Equity

Burden for positive covenants do not pass in equity.

Enforcement by Charles: Passing of benefit to contribute towards the cost of maintaining the sea wall which protects all Whiteacres and Redacre from flooding

For the passing of benefit to Charles, the following has to be satisfied:

• The covenantee must hold a legal estate in the land (the freehold).
• The assignee of the covenantee must also hold a legal estate (Smith and Snipes Hall Farm v River Catchment Board).
• The covenant must touch and concern the land (Swift Investments Ltd v. Combined English Stores Group Ltd).
• There must have been an intention that the covenant should run at the date of the covenant. This is usually presumed under LPA 1925, s. 78. As it is not specifically excluded therefore, it can be presumed that there was an intention that the covenant should run (Roake v Chadha).
• Edwin holds the freehold in Whiteacres. Charles holds freehold in Blueacre. The covenant concerns Whiteacres and when Blueacre was sold to Charles, he became a successor in title to the benefit. This being a positive covenant cannot be enforced against Rob under equity. But it can be enforced against Rufus.

The doctrine in Halsall v. Brizell

The doctrine provides mutuality of benefits and burdens. In this case, the maintaining of the sea wall is for the benefit of all three: Whiteacres, Redacre and Blueacre as it prevents flooding in these properties. As such under this doctrine a burden of a positive covenant may pass to Rob.

Conclusion

Edwin can enforce the covenants against Rufus under privity of contract and Rufus remains liable in damages even when he has sold Redacre to Rob. Edwin can enforce the negative covenants against Rob under equity. The positive covenant of maintaining the sea wall can be enforced against Rob by both Edwin and Charles under the doctrine of Halsall v Brizell.