Can Feng Enforce Covenants Against Toby?

Question from hghh, 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 how they can be enforced. In this scenario, Feng is concerned about several covenants that were originally agreed upon between Trixie and Flora in 2015. These covenants are now relevant to Toby, who purchased the cottage from Flora, and Feng, who purchased the remaining estate from Trixie.

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 for 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.” Here’s how they generally work:

• Restrictive Covenants: These can run with the land and bind subsequent owners if they touch and concern the land. They are enforceable by the original covenantee and successors in title.
• Positive Covenants: These do not automatically run with the land and are generally not enforceable against subsequent owners unless there is a chain of indemnity covenants or other legal mechanisms in place.

Applying the Law to Feng’s Situation

1. Main Trackway and Ditches/Dykes Maintenance: These are positive covenants. Generally, positive covenants do not bind successors in title like Toby unless there is a specific mechanism in place, such as a chain of indemnity covenants. Feng may need to check the title deeds and any agreements made during the sale to see if such mechanisms exist.

2. Single Private Residence Use: This is a restrictive covenant. Feng can potentially enforce this against Toby if it is deemed to “run with the land.” The covenant must be intended to benefit the land retained by Trixie (now owned by Feng) and must be registered appropriately.

3. Boundary Fence Repair: This is a positive covenant. Similar to the maintenance covenants, it may not be enforceable against Toby unless there is a specific legal mechanism in place.

Steps Feng Can Take

1. Review the Title Deeds: Feng should review the title deeds and any related documents to understand the nature of the covenants and any mechanisms for enforcement.
2. Consult a Legal Professional: Given the complexity of property law and covenants, Feng should consult with a solicitor who specializes in property law to get personalized advice.
3. Consider Mediation: If enforcement is possible, Feng might consider mediation as a first step to resolve the issues amicably with Toby.
4. Legal Action: If mediation fails and the covenants are enforceable, Feng may need to consider legal action to enforce the covenants.

Legal Resources and Further Reading

For more detailed information, Feng can refer to resources such as:

– The UK Government’s [Land Registry Practice Guides](https://www.gov.uk/government/collections/land-registry-practice-guides) for understanding property rights and covenants.
– The [Law Society](https://www.lawsociety.org.uk/) for finding a solicitor specializing in property law.

It’s crucial for Feng to seek legal advice to navigate the complexities of enforcing covenants, as each case can have unique circumstances that affect the outcome.