Can Feng Enforce Covenants Against Toby?

Question from alan, 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. Pay half the cost of maintaining the main trackway.
2. Pay half the cost of clearing ditches and dykes around adjoining meadowland.
3. Use the property only for the purpose of a single private residence.
4. Keep in good repair the boundary fence between the cottage and the rest of HylandHouse.

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.

Enforcement of Covenants

In the UK, the enforcement of covenants depends on whether they are positive or negative and whether they “run with the land.”

1. Positive Covenants

Positive covenants, like paying for maintenance, generally do not run with the land. This means they are not automatically enforceable against subsequent owners like Toby. However, there are exceptions, such as if there is a chain of indemnity covenants or if the covenant is part of a building scheme.

2. Negative Covenants

Negative covenants can run with the land and may be enforceable against subsequent owners if:

– The covenant touches and concerns the land.
– The original parties intended the covenant to run with the land.
– The covenant is registered against the title of the burdened land.

Feng’s Options

Given the situation, Feng may consider the following steps:

1. Review the Title Deeds: Check if the covenants are registered against Toby’s title. This can be done through the Land Registry.
2. Determine the Nature of the Covenants: Identify which covenants are positive and which are negative.
3. Consult a Legal Professional: Given the complexity of property law, Feng should seek legal advice to explore options for enforcement, especially for positive covenants.
4. Consider Mediation: Before pursuing legal action, Feng might consider mediation to resolve the issues amicably.

Potential Legal Actions

If the covenants are enforceable, Feng may:

– Seek an Injunction: For negative covenants, such as the restriction on property use, Feng could seek an injunction to prevent Toby from using the property for business purposes.
– Claim Damages: If the covenants are breached, Feng might be entitled to damages for any loss suffered.

Conclusion

Feng’s ability to enforce the covenants depends on their nature and whether they are registered against Toby’s title. Given the complexity of property law, it is crucial for Feng to consult with a legal professional to understand the enforceability of these covenants and the best course of action. For more information on property covenants, you can visit the [UK Land Registry](https://www.gov.uk/government/organisations/land-registry) for guidance on title deeds and covenants.