I watched the videos, but quite still unclear on some things. If you can answer these questions, it really would be helpful. 1. The benefit of a negative covenant can pass to subsequent owners of the original covenantee's title both in law and in equity? Yes / No 2. The burden of a negative covenant can pass to subsequent owners of the original covenantor's title only in Equity? Yes / No 3. The benefit of a positive covenant can only be enforceable if the successor of the benefit is suing the original covenantor? Yes / No 4. The burden of a positive covenant cannot pass to subsequent owners of the covenantor's title except by ways of Creating a leasehold, mutual benefits and burdens, chain of covenants,? Yes / No
Thanks for creating a really useful series of videos. They are very helpful. If for example the words "The land edged and numbered in green on the title plan has been removed from this title and registered under the title number or numbers shown in green on the said plan. Would that be enough to remove the benefit/burden of a statutory annexation? Thanks
@@digestiblelaw4647 Yes I do. The case is rather interesting/complex. 55 ha of land gained planning permission which was then sold in piecemeal to a number of housing developers. Each parcel had a restriction on the number of dwelling units that could be built (not to build more than 200 dwelling units for example). From the 'developer titles' I've seen it's not clear what was the dominant and servient tenements. This 'developer's title' also included the sentence previously mentioned, regarding land edged green being removed from the title (these were the individual building plots) and a plan showing where the various building plots were laid out (edged in green). Houses were then built, each new resident received a 'transfer of part' title referencing the main 'developer title' with a new set of restrictive covenants. The relevant one being 'no part of the property shall be used for any purpose other than a private dwelling house'. The plan for the new residential titles only shows their own building plot with a couple of properties either side for context, it is not clear what the dominant and servient tenements are. So the question is did the 200 dwelling restriction, that the developer had the burden of, get annexed as a benefit/burden to each of the new dwellings?
If anyone reads this I think the answer to my own question posed above is this. I don't believe that the 200-unit limit has passed to the new residents of development for this reason. “In Crest Nicholson Residential (South) Ltd v McAllister Chadwick LJ in the leading judgment of the Court of Appeal confirmed that a requirement for annexation to land is that the land should be so defined as to be “easily ascertainable”. After referring to the statutory provisions for registration he said: “It is obviously desirable that a purchaser of land burdened with a restrictive covenant should be able not only to ascertain, by inspection of the entries on the relevant register, that the land is so burdened, but also to ascertain the land for which the benefit of the covenant was taken - so that he can identify who can enforce the covenant. That latter object is achieved if the land which is intended to be benefited is defined in the instrument so as to be easily ascertainable. To require a purchaser of land burdened with a restrictive covenant, but where the land for the benefit of which the covenant was taken is not described in the instrument, to make enquiries as to what (if any) land the original covenantee retained at the time of the conveyance and what (if any) of that retained land the covenant did, or might have, ‘touched and concerned’ would be oppressive. It must be kept in mind that (as in the present case) the time at which the enforceability of the covenant becomes an issue may be long after the date of the instrument by which it was imposed.”
Thank you, super helpful!!
No problem - happy I could help!
I watched the videos, but quite still unclear on some things. If you can answer these questions, it really would be helpful.
1. The benefit of a negative covenant can pass to subsequent owners of the original covenantee's title both in law and in equity? Yes / No
2. The burden of a negative covenant can pass to subsequent owners of the original covenantor's title only in Equity? Yes / No
3. The benefit of a positive covenant can only be enforceable if the successor of the benefit is suing the original covenantor? Yes / No
4. The burden of a positive covenant cannot pass to subsequent owners of the covenantor's title except by ways of Creating a leasehold, mutual benefits and burdens, chain of covenants,? Yes / No
Thanks for creating a really useful series of videos. They are very helpful. If for example the words "The land edged and numbered in green on the title plan has been removed from this title and registered under the title number or numbers shown in green on the said plan. Would that be enough to remove the benefit/burden of a statutory annexation? Thanks
Do you have a copy of the Register of Title?
@@digestiblelaw4647 Yes I do. The case is rather interesting/complex. 55 ha of land gained planning permission which was then sold in piecemeal to a number of housing developers. Each parcel had a restriction on the number of dwelling units that could be built (not to build more than 200 dwelling units for example). From the 'developer titles' I've seen it's not clear what was the dominant and servient tenements. This 'developer's title' also included the sentence previously mentioned, regarding land edged green being removed from the title (these were the individual building plots) and a plan showing where the various building plots were laid out (edged in green). Houses were then built, each new resident received a 'transfer of part' title referencing the main 'developer title' with a new set of restrictive covenants. The relevant one being 'no part of the property shall be used for any purpose other than a private dwelling house'. The plan for the new residential titles only shows their own building plot with a couple of properties either side for context, it is not clear what the dominant and servient tenements are. So the question is did the 200 dwelling restriction, that the developer had the burden of, get annexed as a benefit/burden to each of the new dwellings?
If anyone reads this I think the answer to my own question posed above is this. I don't believe that the 200-unit limit has passed to the new residents of development for this reason.
“In Crest Nicholson Residential (South) Ltd v McAllister Chadwick LJ in the leading
judgment of the Court of Appeal confirmed that a requirement for annexation to land is
that the land should be so defined as to be “easily ascertainable”. After referring to the
statutory provisions for registration he said:
“It is obviously desirable that a purchaser of land burdened with a restrictive
covenant should be able not only to ascertain, by inspection of the entries on the relevant register, that the land is so burdened, but also to ascertain the land for which the benefit of the covenant was taken - so that he can identify who can enforce the covenant. That latter object is achieved if the land which is intended to be benefited is defined in the instrument so as to be easily ascertainable. To require a purchaser of land burdened with a restrictive covenant, but where the land for the benefit of
which the covenant was taken is not described in the instrument, to make enquiries as to what (if any) land the original covenantee retained at the time of the conveyance and what (if any) of that retained land the covenant did, or might have, ‘touched and concerned’ would be oppressive. It must be kept in mind that (as in the present case) the time at which the enforceability of the covenant becomes an issue may be long after the date of the instrument by which it was imposed.”