Mutual Covenants
Reciprocal Covenants
Reciprocal covenants may be enforceable, notwithstanding that they are positive in nature. Where a number of persons undertake the same obligation, the element of mutuality may be sufficient to justify and require that the obligation should run for the benefit of successors. This applies, for example, where two or more owners covenant to contribute a proportion of the cost of a shared private roadway. In this case, the burden and the benefit are mutual and interlinked and it is equitable that the party should have mutual obligations.
The covenants must be interdependent. If they are independent, the principle does not apply. There is support for the view that if a person does not wish to take the benefit of a covenant in these circumstances, he need not have the burden of it enforced against him, even if it is reciprocal in nature.
The principle of reciprocal covenants applies where each of two parties, each covenantor and covenantee, make and respectively, take the benefit of the same, equivalent or corresponding covenants. The reciprocity principle may also apply, where there is a link between the covenant made and the covenant enjoyed.
Reciprocal covenants typically apply to housing estates where the same common obligations are placed on all owners, designed for the mutual benefit of each. Such a covenant might, for example, provide for a contribution to the cost of maintenance and repair of common parts and access roads.
Must benefit the Land as Such
The burden must be linked to the covenant or benefit received. It must be relevant to the right which allows the benefit to be received. The successors must have the opportunity to choose whether to take the burden of the covenant or not. Having taken the land with the relevant benefit and chosen not to renounce it, they must take the burden.
A similar principle applies to support mutually enforceable restrictive covenant in a building scheme. Where there is a building scheme the benefit and burdens of mutual covenants which each or most enjoy, accrue for the benefit of all owners.
Mutual Estate Schemes
Estate schemes may arise in relation to residential or commercial developments. It commonly occurs that in a development, covenants are imposed to the benefit of the entire estate. There may be, for example, restrictions on building walls in the front gardens or using the property for particular purposes or other developments which might obtain planning permission but might be considered to be against the common aesthetic standards of the estate.
The Courts of Equity have derived principles for the mutual enforceability of restrictive covenants in freehold estate schemes. Freehold estate scheme may arise in relation to residential or commercial developments. Provided certain criteria are complied with, the covenants are mutually enforceable.
The courts apply the principle of mutually enforceable covenants to building schemes where it was clearly intended. The courts have applied the principle, notwithstanding that the strict estate scheme requirements did not apply. A scheme may be upheld where the intention of the parties as evidenced by the deeds in the circumstances is such that a mutually binding estate scheme can be inferred
Criteria for Enforcement
Mutual estate covenants may be enforceable in the following circumstances
- title must be derived from a common owner;
- the estate must be laid out in lots, which are subject to the restrictions; they need not necessarily be identical
- the purpose of the covenants must be to benefit the land sold; they need not benefit all the lots;
- the covenantor and covenantee must have acquired the property from a common owner, on the basis of the restrictions which are imposed for the benefit of all the lots;
- the areas concerned must be reasonably defined.
The covenants are reciprocally enforceable by all owners within the scheme. The covenants need not be identical but must be consistent with a single scheme of development.
Broadening of Rules
The above criteria, which were first set out in the early 20th century have been relaxed in later cases. The courts may infer a building scheme intent, in circumstances where the above test is not necessarily fulfilled. The principle has been extended to estates that were not laid out in lots prior to the first sale but were laid out as such over time.
They need not be a common vendor or a developer in all cases. It is enough that there is a common intention of several vendors to create a scheme. The covenants need not be identical provided that they are similar.
Estate Scheme Issues
Unlike the position with mutual covenants, the obligations under an estate scheme are not destroyed once a single owner buys a number of plots. This is notwithstanding that at common law, the person may not covenant with himself. The Courts of Equity in effect went beyond the common law to go beyond what contract law could provide.
In many developments, there are sub-schemes within the development that vary from the main development. Questions of interpretation arise as to how far the general estate schemes covenants apply. In many cases, they really apply together with further variations thereof on matters specific to the sub-scheme
If the covenants between the various owners vary significantly, there may not be an enforceable scheme, even if they are in broadly similar terms. Where there were different types of scheme covenants within the development, it may cast doubt on the intention that they are all mutually enforceable.
The presence or absence of recitals of an estate scheme in such cases may tip the balance for or against an estate scheme being found, where the variance in covenants is significant. Accordingly, the courts may not infer an intention of mutual enforceability.
Post 2009 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.
2009 Act Estate Schemes
There is provision for schemes of development in which land is divided into two or more parts for conveyance in fee simple to each owner of a part. Where there is a scheme of development the above provisions apply 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 in the manner specified above.
A scheme of development requires an intention as between the developer and the owners of parts to create reciprocity of covenants. The intention is to be expressed or implied in each conveyance to the owner of parts, The covenants and intention are to relate to the parts and the proximity of the relationship between their owners
Covenants which are capable of reciprocally benefitting and burdening the parts of the land within the scheme are enforceable by and against owners of the time being, in the above manner The covenants must relate to the lands.
The new rules apply only to cases where the covenant affects both the land of the covenantee and the covenantor. Where the covenant stands alone, the older rules are likely to apply.
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