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Freehold Positive Covenants: An Archaic Concept - Case Study Example

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The paper "Freehold Positive Covenants: An Archaic Concept" analyses the issue of whether positive freehold covenants should be accompanied by land obligation or not, the land law with reference to relevant Northern Ireland case law and academic authority (i.e. journal articles)…
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Freehold Positive Covenants: An Archaic Concept
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Download file to see previous pages Freehold ownership is created under the feudal law and the feudal system of tenure.5This replaced the native Irish law that was referred to as the Brehon Law. The freehold was introduced into the system in Ireland the years after the Norman Conquest that had led to land being vested in the King and governed through tenure concepts6
Covenants have over the years been used in the transfer of ownership of land in Northern Ireland. 7A covenant basically refers to a promise that a party makes to the other party to do something or fulfills a given agreed obligation8. A covenant can relate to both freehold and leasehold. In freehold land, it is common to find covenants in the transfer deeds when land or property is being sold and sold. This has been done when the party who is selling the property has some interest in the land that they are selling9. The interest can be preserved on the property or land in terms of a negative or positive covenant. Negative freehold covenants tend to be restrictive in nature. Unlike the negative freehold covenant, the second type which is a positive covenant is not restrictive in nature. An example of a positive freehold covenant is a situation where there is a promise to build a fence between two properties or a covenant that requires the person buying the property to contribute towards the maintenance of things like shared access way or even a driveway. In such a case, the seller of the property must show the intention of enforcing the covenant as in the case of Amsprop Trading Ltd v Harris Distribution Ltd10.
A positive freehold covenant can easily be enforced in a court of law when the parties to the contract remain in their initial status at the time when the contract was being signed11. The original covenantee has the right to enforce a positive freehold covenant against the original covenantor. ...Download file to see next pagesRead More
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