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Freehold covenants are too easy to impose upon land and too difficult to remove - Essay Example

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A covenant is an assurance or promise declared through a contract or a deed. A covenant in respect of a land may be of negative in nature where a party makes a promise not to do some action, or it may be a positive covenant where a party promise to other parties to do something. …
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Freehold covenants are too easy to impose upon land and too difficult to remove
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Download file to see previous pages The law pertaining covenants entered between freeholders which is known as freehold covenants symbolises the manner in which one landowner may impact or control the use of adjoining or neighbouring land. A freehold covenant has both an advantage and an onus in respect of two estates in land owned by different individuals. Thus, covenants symbolise another form of proprietary duty, despite one that obliges its origin to the curative authority of courts of equity. (Dixon 2011:313).
A freehold covenant may be explained as promises made through a deed (covenants) between freeholders where one contracting party guarantees to carry out or not to do some actions on the land owned by them for the advantage of adjoining land. For instance, owner of property A promises to the owner of property B not to do some kind of business or trade on his (A’s) land or where the owner of a property X promises to owner of property Y not to construct a wall over above a certain height or without getting approval from the owner of the property Y. The landowner who makes a promise on behalf of his land is known as covenantor (where the onus lies) and the property owner to whom such promise is made is known as covenantee and his land is where the benefit lies. In most of the cases, covenants between freeholders are negative or restrictive in nature, which prevents the owner of the land to do certain things in his own land. (Dixon 2011:313).
The land with an advantage under a freehold covenant is known as dominant land where the land with the disadvantage is identified as the servient land. (Holmes 2005:157). Analysis Privity of Contract In a land deal, there will be a contract between the original parties (buyer & seller) and these original parties to the contract under the common law principle of privity of contract, the party with a benefit can be able to implement the promise or covenant against the party with the burden. In case of a land contract deal, the subject matter is not rest with the original parties to the contract whereas in the majority of the other contract deals, the subject matter rests with the original contracting parties. In land contracts, there is every possibility of passing the property to their legal heirs or successors either by gift or by inheritance or by sale. (Morris 1999:6). Under the privity of contract principle, the burden associated with a land cannot be passed on whereas a benefit attached to it can be passed on to the successor. Hence, the successor to the owner of a land with a burden cannot be compelled to enforce the covenant by the successor to the owner of the land with the benefit covenants attached to it. (Morris 1999:6). In conveyancing a freehold land or property which has a positive covenant which demands the buyer to maintain the land or premises by carrying out repair as and when necessary, which can be only implemented by “privity of contract between the original buyer and the seller.” Once the property is disposed off, the vendor who insisted with a covenant may not be interested in such property’s covenants. There will be no virtual advantage or incentive to implement the covenant just to help those still residing in the adjoining areas. Even if the seller remains there and if the buyer disposes the land to a third party, then” no privity of contract will be existing between the new buyer and the original vendor.” Further, under the principle of privity of estate, as pertinent to promises or covenants included in transfer of freehold land or property, the burden will not pass on to the buyer, and it would not be probable to enforce the promise against the new purchaser directly. ...Download file to see next pages Read More
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