8.1.1 Freehold and Restrictive Covenants - Introduction

Welcome to the eighth topic in this module guide - Freehold and Restrictive Covenants! A covenant is a promise made in a deed by a covenantor for the benefit of a covenantee. In land law, covenants can burden land and affect the use of it somehow. Alternatively, a covenant may give the owner control over what is done on the land that surrounds their land.

Freehold covenants can be varied, and as such they can include a range of different topics. A freehold covenant is a promise extracted by a covenantee from a covenantor. Here, the covenantor either promises to not do (a negative covenant), or to do (a positive covenant) something on their land. The land that benefits from this promise becomes the dominant tenement, whereas the land which is burdened by the promise becomes the servient tenement.

A restrictive covenant prohibits a covenantor from doing something specific over their land or using their land for a particular purpose. The burden of a restrictive covenant is also capable of ‘running’ with the land. This means that subsequent owners and occupiers of the land have to abide by the restriction.

Below are some goals and objectives for you to refer to after learning this section.

Goals for this section:

  • To understand what a freehold covenant is and how they operate.
  • To know how the original parties to a covenant will be bound, irrespective of any sale of the land.
  • To understand what a restrictive covenant is and how they operate.

Objectives for this section:

  • To be able to identify the remedies available if a covenant is broken.
  • To be able to analyse the issues with the current law on covenants and to be able to suggest potential areas for reform.
  • To be able to appreciate the difference between the rules of covenants under the common law and the rules of covenants under equity.

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