what is

What is Covenant? A covenant are terms impliedly stated in a lease, determining the rights and obligations of the parties. This involves landowners seeking to regulate how land is used within a particular locality. The person who makes the covenant is called the covenantor and the person who obtains the be nefit of the covenant is termed the covenatee. There are initially two types of covenant; a positive covenant and a restricted covenant. Restricted Covenants

According to Tulk and Moxhay , the covenant to keep and maintain the grounds in an open state uncovered with buildings, at first sight is a positive covenant, however, the use of the words keep and maintain in indicates an obligation to do something. What makes it restr ictive is the fact that it prevents the convenantor from building upon his own land. land. Simply put, it is a provision in a deed limiting the use of the property and prohibiting certain uses. The issues is whether the successor in title had notice of the covenant. If he did he was bound by it. The only covenant which were capable of binding a successor in title to the convenantor were negative covenants, as in the case of Haywood v Brunswick 1

Permanent Building Society .  the house of the lords confirmed the rule that it is only rest ricted

covenants which can be made to r un directly with freehold land and attempts to make positive covenants binding on successors in title are rather “hopeful than realistic”. Positive Covenants

Positive covenants involves involves the expenditure of money or labour. Where flats are concerned for example, one needs to be able to impose binding positive covenants in respect of matter s such as contributions to the maintenance of the common parts of the building. Positive covenants do not normally give rise to difficulty; damages will usually be rewarded and is an adequate remedy.

In enforcing covenants by and against the successors in title, the issues to be determines ar e; Whether a covenant can be enforced If A sells Parkway to B . ( does the benefit run with



Parkway) Whether a covenant can be enforced against C, if B sells Surrey to C. (does the burden run with



Surrey). Does the burden run with Surrey? The burden of a positive covenant, eg, maintaining maintaining a fence cannot run with the land. Thus it will not be directly enforceable against C. It must be noted that although the burden of a positive covenant cannot run with the land there is a common law rule that a person who claims the benefit of a deed must also submit to any burdens contained in it as in the case Halsall v 2

Brizell . In the instant case, an easement easeme nt of way over the roads on a housing estate had been granted to

house owners, coupled with a positive covenant to contribute to maintenance of the road. It was held that the subsequent purchaser of one of the houses who wished to use the t he roads must submit to the burden of the covenant. 1

 (1881) 8Q.B. 403  [1957] CH 169

2

Does the benefit run with Parkway? The benefit of both positive and restricte d covenants can run with the retained (Parkway) at common law and in equity. The burden of a positive covenant cannot run with the land, the issue of running of benefit is more concerned with restricted covenants. A covenant that runs with the land is a term defined as a promise contained in a deed t o land or real estate which is binding upon the current owner and all future owners. Well drafted covenants, w ill always state that the benefit of the covenant is given for each and every part of A’s retained land (Parkway) and is intended to run w ith it to benefit successors in title of A’s . A person who purchases a lot in a development with restrictive covenants must honour the limitations. When the purchaser resells the lot to a buyer, the new owner will take the property subject to the restrictive covenants, because the covenants are said to "run with the land". If a person violates or attempts to violate one o r more of the covenants, a person who is benefited by the covenants, usually an adjacent property owner, may sue to enforce the restrictions. Courts generally strictly construe restrictive covenants to allow a landowner to use her land for any purpose that is not specifically prohibited by the restrictive covenants or by t he local government.