Common Law and Equity - Assignment Example

Land Law Question One As per the common law, a covenant’s benefit runs with the land benefited. This permits the owner of the benefited land to enforce the covenant against the covenantor. However, such enforcement cannot be made against the successors of the covenantor. The established rule is that the covenant must touch and concern the land of the covenantee. There are several benefits to be gained, by conjoining the rights and burdens of a land use related promise to the property’s title. Consequently, the courts generated a body of law to circumvent the hurdles placed by the traditional contract and property theories. The development of real covenants that ran with the land was as an exclusive class of promises. The latter were legally enforceable and constituted an exception to the principle that promises were restricted to their makers.1 Moreover, equity would enforce agreements that would disallow the use of land in a specific manner with regard to subsequent owners. This was on the basis of equitable consent. In addition, courts have restricted novel forms of servitude in both variety and number. The outcome has been a dramatic reduction in the freedom of private parties to come up with binding land use provisions.2 If servitude, from the legal perspective, does not touch and concern the dominant land; then it will not bind successors. Clarity to some extent was provided, in this context, by the ruling in the Spencer’s case. This ruling stipulated that a covenant had to touch and concern the land, if its burden was to bind assignees and run with the land. 3 If the nature, quality or value of the thing transferred by lease or will is influenced independently of collateral circumstances, then the covenant touches and concerns the land. This also transpires if the manner of enjoying the land is influenced. 4 The definition of touch and concern was introduced in the ruling in Mayor of Congleton v Pattison.5 The present view of the courts is that land is touched and concerned by servitude, if it has an effect on the interests of parties as landowners. Furthermore, the associated benefits and burdens should not be capable of existing independently of ownership in the land. 6 The following case law reveals the attitude of the courts, while deciding issues of touch and concern in land law. In Rogers v Hosegood,7 the Court of Appeal took into account, whether a covenant ran with the land, under circumstances in which the purchaser was unaware of the covenants provided by the purchaser of the other portions of land. If the land alleging the benefit is so vast that it cannot benefit from the covenant, then the latter will not be enforced. In Re Ballard’s Conveyance, it was held that a covenant claiming to touch and concern land had not extended to the whole of the land. The court refused to enforce the covenant, as it did not extend to the entire land. In its ruling, the court declared that it did not have the power to separate the portion of the land that had been affected by the covenant, and leave the remaining land free from the covenant.8 However, in Marques of Zetland v Driver, the Appellate Court upheld the Chancery Division’s decision regarding a covenant for the benefit of a part of the settled land. The covenant, in this case has been specifically expressed for parts of the remaining land, and it did not encompass the entire land.9 Moreover, in P&A Swift Investment v Combined English Stores, the House of Lords established certain conditions to determine the enforceability of a covenant. First, the covenant must touch and concern the land. Second, under the provisions of section 87(1) of the Law of Property Act 1925, the benefit of the covenant must run with the land. There should be an intention to this effect. Third, at the time of the covenant, the covenantee must have title in the land in question. Fourth, the successor must have a legal estate.10 The assignment of the benefit must be in writing and express notice is given to the covenantor, as laid down in section 136 of the Law of Property Act 1925. In the Spencer’s Case, the dispute related to a covenant that required the tenant to build a wall. The lease for building the wall had been assigned twice.11 The court held that the burden of lease covenants that involve touch and concern features is transferred to the assignee of the lease. It is also possible to enforce a covenant against a person who is not a party to the original contract. It has to be proved that there is a sufficiently close relationship between the covenant and the leased land. The following types of covenants fall under the category of touch and concern to the land. They are tenant’s covenants, covenants to pay rent, covenants to repair, and covenants to assign without the consent of the landowner.12 Several decisions of the courts have indicated that they regard a promise to touch and concern the land, if the covenant has an economic effect on the land’s value of title of ownership. This description has been deemed to be convoluted; because, courts assess touch and concern by determining whether the covenant has an impact on the interests of the parties as landowners. Question Two Equity includes the general principle that the beneficiary of a covenant must also shoulder any burden that it incorporates. This principle was illustrated in Halsall v Brizell. 13 In this case, the landowner used a private road, as a benefit of a covenant. This covenant stipulated the upkeep of the road and in this manner provided a benefit, as well as a duty to share the burden inherent in it.14 Moreover, it is important to note that the successive landowners are also subject to the duties imposed by covenants. The fulfilment of such duty entitles them to the benefits provided by covenants. The recent case law in this area has eradicated several uncertainties about the application of the benefit and burden principle.15 In Thamesmead Town v Allottey, 16 the plaintiff argued that the defendant had to pay maintenance charges under the positive covenant. It claimed these charges, because the defendant had obtained two benefits; namely the upkeep of roads and sewers, and the maintenance of common parts. These common parts included walkways and open spaces. It was held by the Court of Appeal that the benefit and burden rule made the defendant liable for the charges, due to roads and sewers. At the same time, the court did not allow recovery with regard to the general facilities. 17 As such, in the Thamesmead Town case, the Court of Appeal restricted this principle, for reasons that are not clear. It had ruled that a person was liable on burden of a mutually positive covenant, only if that person opted to exercise the corresponding benefit. Such individuals are deemed to be liable to the burden, if they are entitled to the benefit. This rule applies, regardless of whether that person utilises the benefit. 18 For example, a landowner, who uses sewers and a private road, is required to pay for the upkeep of both. If he is also required to pay for the upkeep of open spaces, this does not constitute a mutual benefit and burden. This is due to the fact that in the case of open spaces, the burden is not inherent in the benefit. The courts view this aspect as merely a reciprocal responsibility.19 As such, a positive covenant provides some kind of benefit. The person, who obtains this benefit, is liable to bear the burden of the covenant, only when there is a direct and intimate connection between the benefit gained and the burden. Under such circumstances, the courts hold the beneficiary of the covenant liable. As such, the burden should be an inherent feature of the benefit. It can be surmised that the mutuality principle will be applicable, only where there is a close relationship between the benefit accrued and the burden of the positive covenant to be enforced. Bibliography Halsall v Brizell (1957) Ch 169. Marquess of Zetland v Driver (1939) 1 Ch 1 (8). Mayor of Congleton v Pattison (1808) 10 East 130. P&A Swift Investments v Combined English Stores Group Plc (1988) 3 WLR. Re Ballard’s Conveyance (1937) 2 All ER 691. Rogers v Hosegood (1900) 2 Ch 388. Spencer’s Case 77 ER 72. Thamesmead Town Limited v Allotey (1998) 3 EGLR 97. Depoorter BWF and Parisi F, ‘Fragmentation of Property Rights: A Functional Interpretation of the Law of Servitudes’ (2003) 3(1) Global Jurist Frontiers 1. Dixon, Martin, 2002, Principles of land law, Routledge. Skapinker, Diane, The assignment of leases, retrieved 10 January 2012, . Read More