Can Feng Enforce Covenants Against Toby?

Question from gini, Can Feng Enforce Covenants Against Toby?

Answer from AI:

When dealing with property covenants in the UK, it’s important to understand the nature of these covenants and who can enforce them. In this scenario, Feng is concerned about several covenants that were originally agreed upon between Trixie and Flora in 2015. Let’s break down the situation and explore Feng’s options.

Understanding the Covenants

The covenants in question are:

1. Paying half of the cost of maintaining the main trackway.
2. Paying half of the cost of clearing ditches and dykes.
3. Using the property only for a single private residence.
4. Keeping the boundary fence in good repair.

Types of Covenants

Covenants can be either positive or negative (restrictive):

– Positive Covenants: Require the covenantor to do something, such as paying for maintenance.
– Negative Covenants: Restrict the use of the land, such as using the property only as a single private residence.

Enforceability of Covenants

To determine if Feng can enforce these covenants against Toby, we need to consider:

1. Privity of Contract: Generally, only parties to the original contract can enforce it. However, covenants can sometimes be enforced by successors in title.
2. Running with the Land: For a covenant to be enforceable by or against successors, it must “run with the land.”

Positive Covenants

– Positive covenants, like paying for maintenance, typically do not run with the land. This means Feng may not be able to enforce these against Toby unless there is a specific legal mechanism in place, such as a chain of indemnity covenants.

Negative Covenants

– Negative covenants can run with the land if they meet certain criteria, such as benefiting the land retained by the original covenantor. Feng may be able to enforce the covenant restricting the use of the property to a single private residence.

Steps Feng Can Take

1. Review the Title Deeds: Feng should review the title deeds and any related documents to understand the covenants’ terms and whether they are registered.

2. Check for Indemnity Covenants: Determine if there are any indemnity covenants that might allow enforcement of positive covenants.

3. Consult a Legal Professional: Given the complexity of property law, Feng should consult with a solicitor who specializes in property law to explore his options.

Potential Legal Actions

– Injunction: Feng might seek an injunction to prevent Toby from using the property in a way that breaches the negative covenant.
– Damages: If the covenant is enforceable, Feng might claim damages for any breach.

Resources and Further Reading

– [Land Registry Practice Guide 19: Notices, Restrictions and the Protection of Third Party Interests](https://www.gov.uk/government/publications/land-registry-practice-guide-19-notices-restrictions-and-the-protection-of-third-party-interests)
– [Law Commission Report on Easements, Covenants, and Profits à Prendre](https://www.lawcom.gov.uk/project/easements-covenants-and-profits-a-prendre/)

In conclusion, while Feng may face challenges enforcing positive covenants, he might have a stronger case with negative covenants. Legal advice is crucial to navigate these complexities and determine the best course of action.