Pre-2010 Covenants
Land and Conveyancing Law Reform Act 2009
Freehold covenants
Interpretation
Chapter 4.
48.— In this Chapter, unless the context otherwise requires—
“developer” means the person who creates a scheme of development and that person’s successors in title;
“dominant land” means freehold land with the benefit of a covenant to which other freehold land is subject; and “dominant owner” shall be read accordingly and includes persons deriving title from or under that owner;
“freehold covenant” means a covenant attaching to dominant land and servient land which has been entered into after the commencement of this Chapter;
“persons deriving title” include—
(a) a person who has acquired title to the land by possession under the Act of 1957;
(b) a mortgagee, or receiver appointed by a mortgagee, in possession of the land;
“scheme of development” means a development of land under which—
(a) the land is, or is intended to be, subdivided into 2 or more parts for conveyance in fee simple to each owner of a part;
(b) there is an intention as between the developer and the owners of parts to create reciprocity of covenants in accordance with section 49 (3);
(c) that intention is expressed in each conveyance to the owners of parts or implied from the covenants in question as they relate to the parts and the proximity of the relationship between their owners;
“servient land” means freehold land which is subject to a covenant benefiting other freehold land; and “servient owner” shall be read accordingly and includes—
(a) persons deriving title from or under that owner, but not a tenant for a period less than 5 years,
(b) in the case of a covenant which is restrictive in substance, a licensee or other person in occupation of the land with or without the consent of that owner.
Enforceability of freehold covenants.
49.— (1) Subject to subsection (6), the rules of common law and equity (including the rule known as the rule in Tulk v. Moxhay) are abolished to the extent that they relate to the enforceability of a freehold covenant.
[CA 1881, ss. 58 and 59]
(2) Subject to subsections (3) to (6), any freehold covenant which imposes in respect of servient land an obligation to do or to refrain from doing any act or thing is enforceable—
(a) by—
(i) the dominant owner for the time being, or
(ii) a person who has ceased to be that owner but only in respect of any breach of covenant occurring during the period when that person was such owner,
(b) against—
(i) the servient owner for the time being in respect of any breach of covenant by that owner or which occurred before and continued unremedied after that person became the servient owner, or
(ii) a person who has ceased to be that owner, but only in respect of a breach of covenant which occurred during the period when that person was such owner.
(3) Where there is a scheme of development subsection (2) applies so as to render covenants which are capable of reciprocally benefiting and burdening the parts of land within the scheme enforceable by and against the owners for the time being of such parts or persons referred to in subsection (2)(a)(ii) and (2)(b)(ii).
(4) Where the servient land has been subdivided any obligations, whether to do or to refrain from doing any act or thing, relating to that land—
(a) are apportioned, as appropriate to the subdivided parts of the land, between those parts,
(b) are enforceable accordingly by or against the persons in whom the subdivided parts are vested,
as if those obligations had originally been entered into separately in respect only of each such part.
(5) Any dispute as to the application of subsection (4) to a particular case may be
referred to the court for determination and, on such application, the court may order such apportionment as it thinks fit.
(6) This section—
(a) does not affect—
(i) the enforceability of a covenant under the doctrine of privity of contract or a covenant for title under section 80, or
(ii) the application to a freehold covenant of the Act of 1957,
(b) takes effect subject to the terms of the covenant or the instrument containing it.
Discharge and modification.
50.— (1) A servient owner may apply to the court for an order discharging in whole or in part or modifying a freehold covenant (whether created before or after the commencement of this Chapter) on the ground that continued compliance with it would constitute an unreasonable interference with the use and enjoyment of the servient land.
(2) In determining whether to make an order under subsection (1) and, if one is to be made, what terms and conditions should be attached to it, the court shall have regard as appropriate to the following matters—
(a) the circumstances in which, and the purposes for which, the covenant was originally entered into and the time which has elapsed since then,
(b) any change in the character of the dominant land and servient land or their neighbourhood,
(c) the development plan for the area under the Act of 2000,
(d) planning permissions granted under that Act in respect of land in the vicinity of the dominant land and servient land or refusals to grant such permissions,
(e) whether the covenant secures any practical benefit to the dominant owner and, if so, the nature and extent of that benefit,
(f) where the covenant creates an obligation on the servient owner to execute any works or to do any thing, or to pay or contribute towards the cost of executing any works or doing any thing, whether compliance with that obligation has become unduly onerous compared with the benefit derived from such compliance,
(g) whether the dominant owner has agreed, expressly or impliedly, to the covenant being discharged or varied,
(h) any representations made by any person interested in the performance of the covenant,
(i) any other matter which the court considers relevant.
(3) Where the court is satisfied that compliance with an order under subsection (1) will result in a quantifiable loss to the dominant owner or other person adversely affected by the order, it may include as a condition in the order a requirement by the servient owner to pay the dominant owner or other person such compensation as the court thinks fit.
(4) An order under subsection (1) shall be registered in the Registry of Deeds or Land Registry, as appropriate.