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11-Jun-2020 07:56

So pre-1926 a covenant has to explicitly say that it is intended to benefit future owners whereas from 1926 onward this is implied unless the wording of the covenant expressly states that it should not, for example by stating that the operation of s78(1) is excluded.The burden of a covenant will not run at common law meaning that future owners of the burdened land will not be bound however the original covenantor will remain liable even after he has parted with his land. Where a piece of land burdened by covenants is sold it is usual for the seller to require that a clause be included in the transfer to the buyer whereby the buyer agrees to indemnify the seller against any claims for breach of any of the covenants.Please note that this article deals only with freehold covenants.The rules relating to covenants in leases differ in terms of when and how they can be enforced and the consequences for breach.A covenant is essentially a contract between the covenantor (the owner of the burdened land) and the covenantee (the owner of the land which takes the benefit).As a result of a legal principle called “privity of contract”, the covenant will always be enforceable as between the original covenantor and covenantee, even after either or both have parted with the land in question.Covenants are usually contained in the same document that transfers ownership of a property from a seller to a buyer, so a TR1/TR2 (transfer of whole) or a TP1/TP2 (transfer of part) or prior to these forms becoming compulsory, a conveyance or transfer.

For a covenant to continue to be enforceable after the original parties have parted with the land involved, both the benefit and the burden must “run with the land” at either common law or in equity.The Judicature Acts of the late nineteenth century basically merged the two systems but there are still some differences.

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