Can Feng Enforce Covenants Against Toby?

Question from hin, Can Feng Enforce Covenants Against Toby?

Answer from AI:

Introduction

In property law, covenants are promises written into deeds that dictate certain actions or restrictions on the use of the property. When Trixie sold the cottage to Flora in 2015, several covenants were included in the transfer. These covenants were intended to maintain the shared infrastructure and preserve the character of the properties. Now, with Toby’s activities and refusal to comply with certain covenants, Feng, the new owner of Hyland House, is seeking to understand his legal rights and whether he can enforce these covenants against Toby. This explanation will explore each covenant, the potential for enforcement, and the remedies available to Feng under UK law.

Covenant 1: Maintenance of Main Trackway

Issue: Toby is refusing to contribute to the maintenance costs of the main trackway, which was a covenant agreed upon in the 2015 transfer.

Rule: In the UK, covenants can be either positive (requiring action) or negative (restricting action). Positive covenants, like contributing to maintenance costs, do not automatically bind successors in title unless there is a specific mechanism in place, such as a chain of indemnity covenants.

Application:
– The covenant to pay half the cost of maintaining the main trackway is a positive covenant.
– Generally, positive covenants do not run with the land, meaning they do not automatically bind subsequent owners like Toby.
– However, if there was a chain of indemnity covenants or a specific agreement that binds successors, Toby might be obligated to comply.

Conclusion: Feng may face challenges enforcing this covenant against Toby unless there is evidence of a binding agreement that extends to successors. Legal advice is recommended to explore any specific agreements or indemnities that might apply.

Covenant 2: Clearing Ditches and Dykes

Issue: Toby is also refusing to contribute to the cost of clearing ditches and dykes, which was another covenant in the 2015 transfer.

Rule: Similar to the maintenance of the trackway, this is a positive covenant. The enforceability against successors depends on the presence of a binding mechanism.

Application:
– The covenant to clear ditches and dykes is a positive covenant.
– As with the trackway maintenance, positive covenants do not automatically bind successors unless there is a specific mechanism in place.
– Feng would need to determine if there is a chain of indemnity covenants or any other agreement that obligates Toby.

Conclusion: Without a binding mechanism, enforcing this covenant against Toby may be difficult. Feng should consult a legal professional to review the original transfer documents for any enforceable agreements.

Covenant 3: Use as a Single Private Residence

Issue: Toby is using the cottage for business purposes, which may breach the covenant to use the property only as a single private residence.

Rule: Restrictive covenants, like using the property only for residential purposes, can run with the land and bind successors if they touch and concern the land.

Application:
– The covenant to use the property as a single private residence is a restrictive covenant.
– Restrictive covenants generally bind successors if they are intended to benefit the land retained by the original covenantor (Trixie).
– Feng, as the current owner of Hyland House, may have the right to enforce this covenant if it was intended to benefit his property.

Conclusion: Feng likely has a stronger case for enforcing this covenant against Toby. Legal advice is recommended to confirm the enforceability and explore potential actions.

Covenant 4: Repair of Boundary Fence

Issue: The boundary fence is in disrepair, and Toby is not maintaining it as required by the covenant.

Rule: Positive covenants, like maintaining a fence, do not automatically bind successors unless there is a specific mechanism in place.

Application:
– The covenant to keep the boundary fence in good repair is a positive covenant.
– As with other positive covenants, it does not automatically bind successors unless there is a chain of indemnity covenants or a similar agreement.
– Feng would need to determine if there is any binding agreement that obligates Toby to maintain the fence.

Conclusion: Enforcing this covenant may be challenging without a binding mechanism. Feng should seek legal advice to explore any potential agreements or indemnities.

Remedies

If Feng can establish that the covenants are enforceable against Toby, he may have several remedies available:

1. Injunction: Feng could seek an injunction to prevent Toby from breaching the restrictive covenant regarding the use of the property.
2. Damages: Feng might be entitled to damages for any loss suffered due to Toby’s breach of the covenants.
3. Specific Performance: In some cases, a court may order specific performance, requiring Toby to comply with the covenants.

Feng should consult with a legal professional to determine the most appropriate remedy based on the specific circumstances and the enforceability of the covenants.

Conclusion

Feng’s ability to enforce the covenants against Toby depends on the nature of each covenant and whether they bind successors. Restrictive covenants, like the use of the property as a single private residence, are more likely to be enforceable. Positive covenants, such as maintenance obligations, typically require a binding mechanism to be enforceable against successors. Feng should seek legal advice to review the original transfer documents and explore potential remedies. For more information on property covenants, you can refer to the UK Government’s guidance on [property covenants](https://www.gov.uk/guidance/covenants-and-restrictions-on-land-use).