Covenants … bite size

A covenant is a promise made by one landowner to a neighbouring landowner to do, or refrain from doing, something on his land.  Covenants can either be positive covenants (a covenant to build a fence) or a negative covenant (a covenant not to use the property for business purposes).

Only negative (or restrictive) covenants are capable of restrictive future owners of the restricted land.

In order for a covenant to restrict future owners of land, however, it must meet 4 conditions:

• The covenant must be restrictive (or negative)
• At the date the covenant was entered into, the person to whom the promise was being (the covenantee) owned land which would benefit from the covenant
• The original parties to the covenant intended the covenant to be enforceable against future owners of the land
• Any purchaser of the restricted land must be aware of the covenant (they will be deemed to be aware of the covenant if the covenant is registered either as a land charge or registered at the Land Registry)

Key cases:

Austerberry v Corporation of Oldham (1885) 29 Ch D 750

Tulk v Moxhay (1842) 2 Ph 774