Making Land Work: Easements, Covenants and ... - Law Commission

freehold land. 48
2.39 The starting point for freehold covenants remains the doctrine of privity of
contract. However, there have been two significant moves away from that
principle. First, in limited circumstances the benefit of a freehold covenant,
whether positive or negative, runs at law to a successor to the covenantee (that
is, the person who buys the land from the person to whom the covenant was
made). The benefit of the covenant is then said to be “annexed” to an estate in
land. 49
2.40 Second, in Tulk v Moxhay 50 the court determined that the burden of a restrictive
covenant – that is, a covenant consisting of a promise not to do something on
one’s own land – will bind successors in title of the covenantor in certain carefully
defined circumstances. One of the requirements for the burden to run is that a
successor must have notice of the covenant. The effect of the Land Charges Act
1972 51 and the Land Registration Act 2002 52 is to transform this into a
requirement for registration, 53 as a land charge in unregistered land and by notice
on the register of the burdened land where title is registered.
2.41 As a result, restrictive covenants that meet the conditions laid down in Tulk v
Moxhay function as property rights; the benefit of such a covenant can pass to
the covenantee’s successor, and the burden is enforceable against a landowner
who did not make the covenant. We say that the burden runs with the land, or
that the land is burdened by the covenant. But only restrictive covenants behave
in this way; positive covenants do not. This is perceived to be a major weakness
in English law and is the principal reason why freehold flats are inadvisable (since
the physical interdependence of the property means that the owners of the flats
must be required to take positive steps to maintain their property and any
common parts such as the roof). On a level that affects many householders, it is
the reason why there are no rules as to who should repair the fence between two
properties; mostly this is managed by neighbourliness, and by mythology about
the significance of markings on plans.
48 Keppell v Bailey (1834) 2 My & K 517, 39 ER 1042; Austerberry v Corporation of Oldham
(1885) LR 29 Ch D 750; Rhone v Stephens [1994] 2 AC 310. See also S Goulding, “Privity
of estate and the enforcement of real covenants” (2007) 36 Common Law World Review
193.
49 Megarry and Wade, para 32-060.
50 (1848) 2 Ph 774, 41 ER 1143.
51 Referred to as the “LCA 1972” in the footnotes of this Report. LCA 1972, s 4(6).
52 LRA 2002, ss 11(4), 12(4) and 29.
53 The requirement stated in the case was that the purchaser of land must have notice of the
covenant, but the 1925 legislation effectively replaced that with a requirement for
registration. The notice requirement now applies only to covenants affecting unregistered
land that were created before 1 January 1926: LCA 1972, s 2(5).
19