How to Approach Freehold Covenant Problems in UK Land Law?

Question from jfie, How to Approach Freehold Covenant Problems in UK Land Law?

Answer from AI:

When tackling a freehold covenant problem in UK land law, it’s essential to understand the nature of covenants, how they are created, and the principles governing their enforcement. Here are some key points and steps to consider:

Understanding Freehold Covenants

Freehold covenants are promises contained in deeds relating to land, where one party (the covenantor) promises to do or not do something on their land for the benefit of another party’s land (the covenantee).

Types of Covenants

• Positive Covenants: Require the covenantor to take some action, such as maintaining a fence.
• Restrictive Covenants: Restrict the covenantor from doing something, like building above a certain height.

Key Legal Principles

Creation of Covenants

1. Covenants must be created by deed.
2. They must be intended to bind successors in title.
3. They must “touch and concern” the land, meaning they affect the land’s use or value.

Enforcement of Covenants

• Restrictive Covenants: Can be enforced by successors in title if they run with the land.
• Positive Covenants: Generally do not run with the land and are harder to enforce against successors.

Steps to Solve a Freehold Covenant Problem

1. Identify the Covenant: Determine whether the covenant is positive or restrictive.
2. Check the Deed: Ensure the covenant was created by deed and intended to bind successors.
3. Assess the Benefit and Burden: Determine if the benefit and burden of the covenant have passed to successors.
4. Consider Defenses: Look for potential defenses, such as changes in the neighborhood or the covenant being obsolete.
5. Examine Case Law: Review relevant case law, such as Tulk v Moxhay (1848), which established that restrictive covenants can bind successors.

Legal Resources and Further Reading

For more detailed information, you can refer to:

• Land Registration Act 2002
• HM Land Registry Guidance

When to Seek Legal Advice

If you encounter complex issues, such as disputes over the interpretation of a covenant or its enforceability, it is advisable to consult with a legal professional. They can provide personalized advice based on the specifics of the case and help navigate any potential litigation.

Understanding these principles and steps will help you effectively analyze and solve freehold covenant problems in your land law studies.