Covenants & Successors
Enforcement
Covenants are enforceable between the original parties to a deed as a matter of contract law. The general principle is that others are neither bound by, nor may have the benefit of the contract.
The original covenantor will remain liable on the obligation, even after he sells the land, in the absence of statutory principles that discharge him. He may require an indemnity from his successor to abide by the covenant unless a statutory discharge applies.
The covenantee may cease to have an interest to enforce. He cannot obtain a court remedy if has no loss or interest to protect. He may have agreed an indemnity with his successor.
The law of restrictive covenants has sought to find principles by which the covenants may bind successors to the original covenantor and covenantee, as owners of the land. Legislation, legal principles and techniques developed, which are set out in the following section and chapters. Under these rules and principles, a successor may third party may usually take the benefit of covenants affecting the land. A successor may in some cases be subject to the burden of a covenant. .
Binding Successors
The Real Property Act 1845 provided that where a person was intended to be the beneficiary of a covenant under a deed, he could sue on and enforce it, notwithstanding that he was not a party to it. This means that the benefit of the covenant may be passed to successors. This principle is preserved by the 2009 Act for post-2009 covenants, together with its more comprehensive reforms.
The benefit of a contract may be expressly assigned. However, this will not usually allow the successor of the covenantee, who has the benefit of the covenant to enforce the “burden” (obligations) of it against successors of the covenantor.
Until the recent 2009 legislation placing the law on covenants of statutory footing, various legal and equitable principles techniques were used to secure the enforceability of covenants.
There may be a chain of indemnities so that the current owner is bound by the covenant, whether positive (involving expenditure and acts) or negative (requiring a person to refrain from acting). In this case, if the original covenantor is sued by way of enforcement of the covenant, he may join each of the successors to the proceedings, provided that there is a complete chain of indemnities down to the current owner.
It is possible to provide covenants that bind the owner of the freehold land, by providing that the freehold interest is subject to the condition of compliance with the covenant. In this case, the seller or predecessor retains a right of entry to terminate the estate for breach of the freehold estate. A conditional fee has been abolished under the land law reforms, but an equivalent arrangement can be put in place under a trust.
Leases
A distinction must be drawn between leasehold and freehold titles. A lease allows the creation of conditions relating to the land which are binding on the successors to the landlord and tenants. This is provided by the statute under the Landlord and Tenant Ireland Amendment Act 1860, Deasy’s Act.
It makes clear provision for substitution of the original landlord and tenant by their successors. The ongoing landlord and tenant are discharged from the benefit and burden of the and their respective successors assume their position.
In the case of leases, positive and negative covenants that touch and concern the land, have long since, bound the original landlord and tenant and their respective assignees. This applies to all categories of leases, even the very long leases at a nominal rent, virtually the same as a freehold interest, commonly found in urban areas in Ireland. Obligations in such long leases, which touch and concern the land, bind the successors of the original ground landlord and ground tenant.
Covenants are fully enforceable between landlord and tenant where they relate to the land. Since 1860, they have automatically bound successors to the original parties as landlord and tenant. Leasehold covenants may contain both negative and positive obligations. They may be enforced by and against the landlord and tenant for the time being of land. The original lessee is released on completion of a valid assignment.
Deasy’s Act
The Landlord and Tenant Law Amendment Ireland Act, 1860 (known as Deasy’s Act) provides a general principle that the terms of a lease are enforceable by and against the landlord and tenant and their respective successors. The outgoing tenant is discharged after he gives notice to the landlord in accordance with the terms of the lease. Consent to an assignment is required where applicable under the terms of the lease.
Deasy’s Act allowed for the creation of leases for ever, a category of fee farm grant. The covenants in them are enforceable, as between the original grantor and grantee and their respective successors under Deasy’s Act.
There are differing views as to whether Deasy’s Act requires that the covenant must “touch and concern” the land. On one view a lease is simply a contract so that all its obligations are enforceable. On another view, Deasy’s Act preserved aspects of the existing law.
Deasy’s Act was duplicated by the Conveyancing Acts 1881, which apply to the whole of the United Kingdom including Ireland. This Act confirmed that lease covenants were enforceable against successors, provided that they touched and concerned the land.
Leases Converted to Freehold
In a number of cases, statute has provided for the enlargement of long leases into freehold. The statutes usually preserved some or all of the relevant covenants in the enlargement, so that they survive, even when the freehold is acquired.
Mid-Victorian legislation provided for the conversion of very commonly encountered leases for lives, renewable for ever, into fee farm grants. The legislation provided that the covenants in the superseded lease for lives, continued to subsist, notwithstanding the acquisition of the freehold estate.
Leases for Ever
Prior to the recent land law reforms, it was possible to grant a lease for ever under Irish law. This was a fee farm grant. Covenants in a lease for ever are enforceable automatically between successors, whether positive or negative in nature, provided that they relate to the property concerned. This is because they were leases, albeit leased in perpetuity. Leasehold law applied.
The 2009 land law reforms prohibited the creation of new fee farm grants. If such an interest is purported to be created, it is deemed freed and discharged from any covenant or other provision relating to rent provided that other covenants or provisions continue in force in so far as they are consistent with the nature of a fee simple interest. The provision is of limited effect because the 2009 Act itself has modified freehold covenants.
Under the older mechanism for the purchase of the freehold, including the Conveyancing Act and the Renewable Leasehold Conversion Act by which the existing lease for life renewable for ever or converted into fee farm grant, the covenants and conditions in the underlying lease were preserved. eases for lives renewable for ever were commonly granted in the 18th century and early 19th century during the penal laws. They gradually acquired freehold status by recognition of the equity to renew.
Title Covenants
Long leaseholders, who in substance own the land ( long lease term, low fixed rent) may acquire the freehold interest. In some cases, the statutes preserve the covenants and conditions affecting the former leasehold, even after it has been converted into a freehold interest.
When the freehold interest in the buildings is acquired under ground rents legislation, the general position is that the lease no longer subsists and that the leasehold covenants cease to apply. No new covenants may be created thereafter except with the person’s agreement.
The legislation provides that certain covenants continue to apply. Covenants to protect or enhance the amenity of land occupied by the immediate ground landlord, those which relate to the performance of a statutory duty by such person relating to a right of way over the acquired land, right of drainage or other rights which are necessary to secure or assist the development of other lands, continue to be enforceable.
Freehold Buy Out
Early ground rents legislation allowed for the extension of long leases into freehold interests. It provided that the estate as so enlarged would be subject to the same covenants and provisions, as to use and enjoyment and the same obligations, as they would have applied, had the lease still subsisted.
Ultimately, ground rents legislation was broadened in the 1960s and 1970s. The 1978 legislation, which is still in force, provides that upon acquisition of the fee simple, most covenants other than a limited category are extinguished. See separately the section on ground rent interest enlargement.
It is arguable that the Conveyancing Act under the “all estate clause” section 6, carries the benefit of covenants.
2009 Act Reforms
The 2009 land law reforms apply to covenants entered after 1st December 2009. The Act provides new rules for the enforcement of the covenants between owners and successors of both the freehold dominant (benefitted) land and the servient (affected) land.
The dominant land is the freehold land that benefits from the covenant, to which the other land is subject. The servient land is the freehold land that is subject to a covenant, benefitting the other freehold land.
The dominant and servient owners are those respectively, who hold an estate in the dominant (benefitted) land and servient (affected) lands respectively. They include those who derive title from them.
Restrictive covenants are enforceable against licensees, occupiers and trespassers on the land. The servient owner in the case of a covenant that is restrictive in substance is deemed to include a licensee or other person in occupation of the land with or without the consent of that owner
A tenant for a period of less than five years is not deemed servient owner.
References and Sources
Primary Texts
Wylie on Irish Land Law Wylie 6th Edition 2020
Land Law In Ireland -Lyall 4th Edition 2018
Principles Of Irish Property Law de Londras 2nd Edition 2011
Equity and the Law of Trusts in Ireland- Keane 3rd Edition
Land Law Kenna & Murphy 2019
Land Law Pearce & Mee 3rd Edition 2011
Other Irish Sources
The Land and Conveyancing Law Reform Act 2009: Annotations and Commentary -Wylie 2nd Edition 2017
Property Legislation 2009 2011 Cannon, Clancy, Kenna 2012
Irish Land Law – A Casebook: Adanan Maddox 2020
A Casebook on Equity and Trusts in Ireland – Wylie
Shorter Guides
Land Law Nutshell Cannon 2020
UK Textbooks
Land law C. Bevan 2nd ed.2020
Land Law: Text, Cases and Materials B McFarlane, N Hopkins and S Nield, (4th ed. OUP 2018)
Property Law R Smith(10th ed., Pearson, 2020)
Cheshire and Burn’s Modern Law of Real Property by Burn, E. H. 2011
Modern Land Law Dixon 2018
Elements of Land Law Gray, 2009
Property law: cases and materials Smith 2015
Land law Cooke 2015