Post-2010 Covenants
Freehold Overview
Covenants are obligations comprised in a document that is executed as a deed. In the context of land, they subsist as contractual obligations between the original parties to the deed. As a general rule, covenants being contractual obligations do not generally continue to bind the successors to the original parties.
However, in the context of property law, certain types of covenants relating to the property/land itself, continue to bind the successors of the original covenantor and covenantee as owners of the relevant property.
Such covenants pass in the same manner as real property generally. They may devolve on the death of the owner to his representatives, and ultimately to his beneficiaries. Once annexed to the land, the covenant passed automatically with the land wthout separate assignment.
The relevant rules were reformed by the 2009 Land Law legislation. The 2009 legislation applies to covenants entered after 1st December 2009. There are some issues of interpretation as to its scope.
Under both the pre-2009 and post-2009 legislation, a third party may take the benefit of a covenant in relation to land, whether or not named in the relevant deed. The covenant must relate to land. Purely personal covenants are not enforceable in this way. Generally, the original covenantee who has parted with the property may not enforce a covenant that is for the benefit of the land and is not for his benefit in a personal capacity.
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.
Limits on Scope
The new rules apply to covenants affecting the land as such. They do not apply to personal covenants. The older rules are abolished to the extent that they relate to the enforceability of freehold covenants. There are some unresolved questions of interpretation as to the scope of the new rules.
The new rules do not affect the enforceability of a covenant under the doctrine of privity of contract. Therefore where the covenant is enforceable as a contract, it continues to be enforceable.
The rules do not limit covenants for title. They are implied covenants given by the seller of property as to ownership and certain other matters.
The rules in the Statute of Limitation as to the point in time at which rights to take action for breach are lost, continue.
The rules take effect subject to the terms of the covenant or the instrument containing it. Therefore they may be varied by its terms.
Land Covenants Generally Bind
Broadly speaking, covenants are enforceable during the period when the dominant and servient tenements owners are respectively, owners of the relevant properties. They may take action or be subject to action after they have ceased to be owners in respect of breaches that arose while they were the owner.
A freehold covenant that imposes an obligation in respect of servient land (land affected) to do or refrain from doing an act is enforceable by the current dominant owner (land benefitted). It is also enforceable where that person who has ceased to be the owner of the benefitted land, but only in respect of any breach of covenant occurring during the period when that person was such owner.
A freehold covenant which imposes an obligation in respect of servient land (land affected) to do or refrain from doing an act is enforceable against the servient owner (owner of land affected) 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.
They also apply against a person who has ceased to be the owner, of the land affected but only in respect of a breach of the covenant that occurred during the period when that person was such owner.
With the servient land has been sub-divided, covenants positive and negative are to be appropriately apportioned between the subdivided parts. Where there is a dispute as to apportionment, the matter may be referred to the court for determination and, on such application, the court may order such apportionment as it thinks fit.
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