Introduction:

This particular question deals with the creation and implementation of freehold covanents.in this answer
_______ will be advised that whether or not he can enforce a covenant against ________. This will be
ascertained by discussing whether or not the covenant's burden and benefit have been transferred to
the subsequent covenantor and covenantee, respectively. Furthermore, the nature of covenant highly
effects the enforcement of a covenant as well as the type of remedy that might be available.

2nd paragraph:

A covenant is a promise contained in a deed. For a covenant to be created there must be a covenantor
and a covenantee who are identifiable at the time covenant is made. A covenantor is someone who
makes a promise and therefore has to face its burden whereas a covenantee is someone to whom the
promise is made and thus enjoys the benefit of the land. in our scenario the covenantor is
_____(because) and the covenantee is _______(because), and are both identifiable.

There are two types of covenants, namely; a positive covenant and a negative covenant. In a positive
covenant the covenantor is expected to do something and usually will involve the expenditure of money
as per Rhone v stephens. whereas in a negative covenant the covenantor is refrained from doing a
particular activity on his land as seen in Tulk v Moxhay. (Now explain all the mentioned covenants and
tell which is negative and which is positive.)

Original covenantor and covenantee. Principle 1

Here principle 1 will be applied because there has been no sale of dominant land or the servient land
and the covenantor and covenantee are the original ones not the successors. In this regard the rule
which is being applied is very simple and straightforward. It says that no matter whether the covenant is
positive of negative, its burden as well as its benefit will be able to pass and the covenantee could
enforce it against the covenantor. Three types of remedies are available for the breach of a covenant
namely; injunction, damages or specific performance. However, the discretion to award the remedy and
the kind of remedy, lies with the courts.

Principle 2 passing the burden:

The directions given by the common law principle no 2 will be relied upon by ______ in order to
establish that ______ has the burden of the covenant. As per the Austerberry rules provided by the case
of Austerberry v corporation of Oldham, a burden of both a positive and negative covenant cannot be
passed at law to the successor of title to the original covenantor. However the burden of only a negative
covenant is able to pass to the subsequent successor of the original covenantor but only in equity. This
means that burden of positive covenant can never by passed.

There are five requirements which must be established in order to enforce a negative covenant and will
be therefore discussed in this answer. The first requirement is that the covenant must be restrictive in
nature. This means that the covenantor must be restricted from a particular action on his land as was
seen in the case of holland park v hicks. Here in this scenario________. The second requirement is that
the covenant must touch and concern the land and not be personal to the covenantee. As per swift
investments v CES the test is that the covenant should effect the mode of use, nature, value and quality
of land. in our scenario____(it is relevant to the land and not personal so it touch and concern the land.).
thirdly the covenant must benefit the covenantee. Fourthly the covenant’s burden must run with the
land. it is not difficult to establish this because there is a presumption under Section 79(1) of LPA 1925
the covenant will always run with the land however it can be rebutted if any contrary intention is present
as was seen in the case of Morrells v oxford united FC. The last requirement is that the covenant need to
be registered against the burdened title by means of a notice for it to become binding. Here______.

Remedies: Discretion lies with the courts.

Gafford v Graham—no remedy was given (neither damages nor injunction).

Thamesmead Town v Allotey—damages were given

Principal 3: passing the benefit:

The benefit of both a positive covenant and a negative covenant can pass at law as well as at equity.
Whenever to sue an original covenantor the passing of benefit under law is usually used. Whereas the
methods provided by equity are used whenever we need to sue the successor of original covenantor’s
land and the benefit of land is enjoyed by covenantee has to be proved.

A number or requirements must be fulfilled in order establish that under law or equity ____ can enjoy
the benefit of the covenant. The first requirement is that the covenant must touch and concern the land
and not be personal to the covenantee. As per swift investments v CES the test is that the covenant
should effect the mode of use, nature, value and quality of land. in our scenario____(it is relevant to the
land and not personal so it touch and concern the land.). the second requirement that has to be fulfilled
is that to pass benefit under the law a legal estate must be possessed by the covenantee. And for the
benefit to be passed at equity the covenantee can have either the legal or equitable interest in the land.
the claimant needs to be a leasehold owner or a freehold owner of land in order to claim as per section
78 of LPA 1925. In our scenario_____.

(under law): (when original covenantor being sued)(for remedy of damages)

The third requirement is regarding the annexation of covenant. It is mandatory for a covenant to be
annexed to the land either expressly or impliedly. Under S78 LPA 1925 a statuatory presumption lies
which is that a benefit of land will always be annexed to land. The COA in the Federated Homes Ltd. case
states that s. 78 only applies to covenants that touch or concern to the property that has been
previously formed as well as what it annexes to in its entirety.

(under equity): (when covenantor’s successor is being sued) (remedy of injunction and specific
a performance)

The third requirement is that the said benefit needs to be transmitted to the concerned land.
annexation, development scheme and assignment are the three ways of transmitting benefit to the land.

Annexation from notes: if needed (ask faiq)

Assignment from notes: if needed (ask faiq)

If assignment : In case of rebuttal of section 78, then pass the benefit through assignment. However,
following requirement must be established. Assignment must comply formality requirements per section
136 LPA 1925. Re Pine Wood Case – Stilwell vs Blackman, Newton Abbot case.

Development scheme: (under equity)

The development scheme is an additional means, under equity, of transferring the benefit to the land.
By providing each buyer of a plot of land the benefit of each covenant, mutually enforceable duties are
formed. In Elliston v. Reacher, the development concept was provided, and it received additional
validation in Birdlip v. Hunter (2016). This technique has several requirements: the land must be clearly
defined and identified, there must be a common vendor, and the covenants must be meant that they be
enforced. All buyers, whether they are new or old, are eligible to profit from every covenant in the
development scheme.