Land law Essay Example | Topics and Well Written Essays - 1250 words - 1

Land law - Essay Example In the current case, Stone Construction Limited is not bound by any covenant that Steve undertook with Joan. Moreover, a covenant can only take effect and be respected if the benefit of the covenant comes to the party bearing the burden of the covenant. Under Austerberry v Oldham Corporation2, any agreement between the covenantor and the covenantee only holds between the original parties and not between successors unless: such stipulations are mentioned in the covenant; such stipulations are passed onto successors with their full knowledge and acceptance. Hence, the burden of a covenant does not pass to the successor through title at common law. The burden can only be passed under equity if: the covenant is negative in effect; covenant benefits the covenantee’s land; the burden of the covenant was designed by the original parties to run with the land3; the succeeding party was provided notice of the covenant at purchase. Given the ruling under Tulk v Moxhay4, it is clear that Hans cannot be provided benefit under equity either since the covenant was not designed to run with the land and the successor, Stone Construction Limited, had not notice of the covenant. However, the burden of a restrictive covenant passes to the successor in title only under equity but not under law. In the current situation, Hans tends to be affected more by equity based rules rather than contract based rules. Under common law, Hans cannot be provided benefit of the covenant since he was not a party to the original contract. Acting in Hans’ favour using a contract law position would signal a disregard for common law so Hans cannot be given advantage. Alternatively, Hans could have been provided some benefit under Section 56(1) of the Land and Property Act (LPA)5 if he were named and described under the original covenant. However, this is not the case since Joan, the covenantee, had failed to describe or name Hans with the original covenantor Steve. On another note, Hans ma y receive some relief under Section 1 of the Contract (Rights of Third Parties) Act6 since Hans stands to benefit from the covenant along with other future land owners. In order to analyse the burden and the benefit of the covenant, it is pertinent to consider equitable rules. The benefit of the covenant could only pass in equity if: benefit of the covenant was attached to Joan’s land; benefit of the covenant was moved through express declaration of Joan to the successor in title Hans; the concerned land was part of a development scheme7. Alternatively, under the decision for P&A Swift Investments v Combined English Stores Group PLC8, it was provided that a covenant may pass at common law in case that the covenant concerns the dominant land so as to benefit any successors and the covenantee personally. However, under the judgement provided under Smith and Snipes Hall Farm Ltd v River Douglas Catchment Board9 using Section 78 of the LPA, it would be necessary to provide or pro ve that Hans’ land is damaged by the actions of Stone Constructio