Can Feng Enforce Covenants from the 2015 Transfer?

Question from nini, Can Feng Enforce Covenants from the 2015 Transfer?

Answer from AI:

When dealing with property covenants in the UK, it’s important to understand the nature of these covenants and whether they can be enforced by subsequent property owners. In this scenario, Feng is concerned about the covenants from the 2015 transfer between Trixie and Flora, which now affect Toby, the current owner of the cottage. Let’s explore the enforceability of these covenants.

Understanding Property Covenants

Property covenants are promises made in a deed that impose certain obligations or restrictions on the use of the property. They can be either:

– Restrictive Covenants: These restrict the use of the land, such as using the property only for a single private residence.
– Positive Covenants: These require the property owner to take certain actions, like maintaining a fence or contributing to maintenance costs.

Enforceability of Covenants

In the UK, the enforceability of covenants depends on several factors:

1. Privity of Contract: Originally, covenants are enforceable between the original parties to the contract. However, when the property is sold, the new owner may not automatically be bound by these covenants unless certain conditions are met.

2. Running with the Land: For a covenant to be enforceable by or against subsequent owners, it must “run with the land.” This means it must be intended to bind future owners and be related to the land itself.

3. Benefit and Burden: The new owner must receive a benefit from the covenant to be bound by its burden. This is often assessed through the “benefit and burden” principle.

Specific Covenants in the 2015 Transfer

Let’s examine each covenant to determine if Feng can enforce them against Toby:

1. Paying Half the Cost of Maintaining the Main Trackway:
– This is a positive covenant. Generally, positive covenants do not run with the land and are not enforceable against subsequent owners like Toby unless there is a chain of indemnity covenants or a specific legal mechanism in place.

2. Paying Half the Cost of Clearing Ditches and Dykes:
– Similar to the first covenant, this is also a positive covenant and typically does not bind subsequent owners without specific arrangements.

3. Using the Property Only for a Single Private Residence:
– This is a restrictive covenant. Restrictive covenants can run with the land and may be enforceable against Toby if they were intended to benefit the retained land (HylandHouse) and are registered appropriately.

4. Keeping the Boundary Fence in Good Repair:
– This is a positive covenant and, like the others, may not be enforceable against Toby unless specific legal mechanisms are in place.

Steps Feng Can Take

Feng may consider the following steps to address the situation:

1. Review the Deed: Examine the original deed to determine the exact wording and registration of the covenants.
2. Check for Registration: Ensure that the restrictive covenant is registered against Toby’s title. This is crucial for enforceability.
3. Consult a Legal Professional: Given the complexity of property law, Feng should seek legal advice to explore options for enforcing the covenants, especially the restrictive one.
4. Negotiate with Toby: Attempt to reach an amicable agreement with Toby regarding the maintenance and use of the property.
5. Consider Legal Action: If negotiations fail, legal action may be necessary to enforce the restrictive covenant, but this should be a last resort.

Legal Resources and Further Reading

For more detailed information, Feng can refer to the following resources:

– [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/)

It’s important for Feng to understand that property law can be complex, and the enforceability of covenants often requires a detailed legal analysis. Consulting with a legal professional is recommended to obtain personalized advice tailored to the specific circumstances.