Introduction
This essay examines the enforceability of three covenants agreed upon in 1990 between Thrace, the original owner of Beselthorpe estate, and Sonia, the buyer of a smaller unit. These covenants, made by valid deed for the benefit of Thrace’s retained land, include restrictions on noisy activities, a contribution of 30% towards shared drive maintenance, and the provision of a monthly free beauty treatment. With the properties having changed ownership multiple times, the current owner of the larger unit, Hoppit, seeks to enforce these covenants against Jules, the current owner of the smaller unit. This analysis, grounded in English land law principles, particularly the rules on the burden and benefit of covenants, assesses whether Hoppit can enforce each covenant. The discussion will consider both statute and case law to provide a sound legal basis for advising Hoppit.
Legal Framework for Covenant Enforceability
In English land law, covenants are promises affecting land use, often included in property transactions. For a covenant to be enforceable between successors in title, such as Hoppit and Jules, specific conditions must be met regarding the burden and benefit of the covenant. Under common law, the burden of a covenant does not automatically pass to a successor in title unless certain criteria are satisfied, as established in Austerberry v Oldham Corporation (1885). However, equity provides a pathway for enforcing restrictive covenants through the doctrine in Tulk v Moxhay (1848), which requires that the covenant is negative in nature, benefits the dominant land, and was intended to run with the land. Moreover, the benefit of a covenant must pass to the successor of the dominant land, often through express assignment or annexation to the land as per Federated Homes Ltd v Mill Lodge Properties Ltd (1980).
Analysis of Each Covenant
Covenant (a): Prohibition of Noisy Activities
The covenant prohibiting noisy activities is restrictive in nature, as it limits the use of the smaller unit. Following the principles in Tulk v Moxhay, for this to bind Jules, it must have been intended to benefit Thrace’s retained land, which it explicitly was, as stated in the deed. Furthermore, the benefit must have passed to Hoppit. Under Federated Homes Ltd v Mill Lodge Properties Ltd, where a covenant is made for the benefit of retained land, the benefit is presumed to be annexed to that land unless stated otherwise. Thus, Hoppit can likely enforce this covenant against Jules, provided notice of the covenant was evident at the time of purchase, typically through land registration. Jules’ operation of noisy children’s parties arguably breaches this covenant, and Hoppit may seek an injunction to prevent such activities.
Covenant (b): Contribution to Shared Drive Maintenance
The covenant requiring a 30% contribution to the maintenance of the shared drive is a positive covenant, as it mandates an action (payment) rather than a restriction. Historically, positive covenants do not bind successors in title under common law, as reiterated in Rhone v Stephens (1994), where the House of Lords confirmed that the burden of positive covenants does not run with the land in equity. Although the covenant was included in a valid deed, there is no mechanism in equity or statute, such as the Law of Property Act 1925, to enforce this against Jules unless a chain of indemnity covenants exists, which is not indicated in the facts. Therefore, Hoppit is unlikely to succeed in enforcing this covenant directly against Jules for the 2024 resurfacing costs.
Covenant (c): Provision of Free Beauty Treatment
Similarly, the covenant to provide a monthly free beauty treatment is positive in nature, requiring active performance. As with covenant (b), the burden of this obligation does not run with the land under English law principles. There is no equitable or statutory basis to compel Jules to provide this service to Hoppit, irrespective of the original deed’s wording. Consequently, Hoppit has no legal recourse to enforce this covenant.
Conclusion
In advising Hoppit, it is evident that the enforceability of the covenants varies. The restrictive covenant prohibiting noisy activities is likely enforceable, provided it was registered or Jules had notice, and Hoppit may pursue remedies such as an injunction to halt Jules’ children’s parties. However, the positive covenants regarding drive maintenance and beauty treatments cannot be enforced against Jules due to the longstanding legal principle that the burden of positive covenants does not run with the land. Hoppit should focus on enforcing the restrictive covenant while exploring alternative arrangements, such as negotiation, for the shared drive maintenance. This analysis underscores the limitations of covenant enforceability in land law and the importance of clear legal drafting at the point of sale to anticipate changes in ownership.
References
- Dixon, M. (2018) Modern Land Law. 11th ed. Routledge.
- Gray, K. and Gray, S.F. (2011) Elements of Land Law. 5th ed. Oxford University Press.
- Smith, R.J. (2017) Property Law. 9th ed. Pearson Education.
