## Introduction

Covenants are promises about land use, usually found in deeds. They matter because they can control how land is used long after the original sale, sometimes binding later owners. The key split is between positive covenants (requiring action, such as maintenance) and restrictive covenants (preventing action, such as building above a certain height). That split affects who can be bound down the line.

For covenants to affect successors, the law looks at whether the promise “touches and concerns” the land (i.e., relates to its use or value), whether the parties intended it to continue, and whether the right people are on notice. The rules come from both common law and equity, and differ for registered and unregistered land. This guide sets out the core rules, the standout cases, and the practical steps you should take in dealings with freehold and leasehold covenants.

## What You’ll Learn

- The difference between positive and restrictive covenants and why it matters
- How the burden and benefit can pass to successors in title
- Notice and registration requirements in registered and unregistered land
- When and how building schemes allow mutual enforcement
- Remedies for breach: injunctions, damages, and leasehold forfeiture
- How to discharge or modify restrictive covenants under s84 LPA 1925
- Practical drafting and conveyancing tips to protect or challenge covenants

## Core Concepts

### Positive vs Restrictive Covenants

- Positive covenants require expenditure or action (e.g., maintaining a wall, paying a service charge).
- Restrictive covenants restrict use (e.g., “no business use”, “no building beyond two storeys”).

Burden

- Freehold positive covenants: the burden does not run with the land at common law (Austerberry v Corporation of Oldham (1885); affirmed in Rhone v Stephens [1994] 2 AC 310).
- Restrictive covenants: the burden can bind successors in equity if the covenant is negative in substance, benefits identifiable land, the original parties intended it to bind successors, and the purchaser of the burdened land had notice (Tulk v Moxhay [1848]).

Benefit and burden principle

- A limited exception allows a successor who chooses to take a benefit conferred by a deed to be required to accept a directly linked burden (Halsall v Brizell [1957]). The link must be clear and the successor must have a real choice; it cannot be used as a backdoor to enforce general positive obligations (Rhone v Stephens [1994]).

Tip: When assessing if a covenant is restrictive, focus on its substance, not just its wording. If it compels expenditure or work, it is likely positive.

### How the Benefit Runs with the Land

The right to enforce (the benefit) can pass at law and in equity if:

- The covenant “touches and concerns” the benefited land.
- There was an intention for the benefit to run (often express; also supported by statute).
- The person claiming is a successor to the benefited land.

Mechanisms

- Express annexation: the original deed states the benefit is attached to identified land; if done properly, no fresh assignment is needed (Rogers v Hosegood [1900] 2 Ch 388).
- Statutory annexation: s78 Law of Property Act 1925 often treats the benefit of a restrictive covenant as annexed to the land, unless excluded. This was endorsed in Federated Homes Ltd v Mill Lodge Properties Ltd [1980] 1 WLR 594.
- Assignment: the benefit can be expressly assigned to a successor if the transfer complies with the relevant requirements and the land itself also passes.
- Building schemes: a special form of mutual enforcement within a defined estate (see below).

Note: s79 LPA 1925 is sometimes cited on intention for the burden to run, but it does not change the core equitable rules for burden; Tulk v Moxhay still governs.

### Notice and Registration

Registered land (Land Registration Act 2002)

- Restrictive covenants are protected by an agreed or unilateral notice on the Charges Register (LRA 2002, s32). Without a notice, a buyer for value will generally take free.
- Positive covenants are not registrable as notices in the same way. To support enforcement, practitioners often use:
  - A restriction requiring consent before dispositions (e.g., from a management company), and/or
  - Chains of indemnity covenants, or a rentcharge structure.

Unregistered land (Land Charges Act 1972)

- Post-1925 restrictive covenants must be registered as a Class D(ii) land charge against the name of the estate owner who made the covenant. If not registered, the covenant is void against a purchaser of a legal estate for money or money’s worth.
- Pre-1926 restrictive covenants rely on the doctrine of notice: they bind only if the purchaser had notice.

### Building Schemes (Schemes of Development)

A building scheme lets plot owners in a defined estate enforce common covenants against each other. The traditional Elliston v Reacher [1908] criteria (softened over time) are a helpful checklist:

- A common vendor laid out a defined area in lots.
- There was a general scheme of restrictions intended to apply to all lots.
- The restrictions were for the mutual benefit of the lots.
- Purchasers knew of the scheme when buying.

Modern cases accept a more flexible approach, but you still need clear evidence of a mutual scheme covering a defined area. If some plots later come back into common ownership, mutual enforceability revives once they again pass to separate owners; if all plots come into single ownership, the scheme collapses (Texaco Antilles Ltd v Kernochan [1973] AC 609).

### Modification and Discharge under s84 LPA 1925

The Upper Tribunal (Lands Chamber) can discharge or modify a restrictive covenant if one of the statutory grounds is met:

- Obsolete due to changes in the character of the property or neighbourhood (e.g., Re Quaffers Ltd’s Application (1988) 56 P & CR 142).
- The covenant impedes reasonable use, and it does not secure practical benefits of substantial value or advantage.
- All beneficiaries agree to discharge or modification.
- No injury will be caused to those entitled to the benefit.

Key points:

- Planning permission is relevant but not decisive; it is simply one factor (Re Cordwell’s Application [2008] 2 P & CR 570).
- The Tribunal weighs the covenant’s utility for neighbouring land (Re Martin’s Application (1989) 57 P & CR 119).
- The applicant’s knowledge of the covenant can influence discretion and compensation (Re Page’s Application (1996) 71 P & CR 440).
- Compensation may be awarded where appropriate.

## Key Examples or Case Studies

Tulk v Moxhay [1848] EWHC J34 (Ch)

- Context: A purchaser bought land with notice of a promise not to build upon a garden square.
- Key point: The equitable burden of a restrictive covenant can bind a successor with notice if the covenant benefits identifiable land.
- Application: For restrictive covenants, focus on notice, the negative nature of the obligation, and a benefiting dominant land.

Rogers v Hosegood [1900] 2 Ch 388

- Context: Benefit wording in a conveyance purported to attach to land.
- Key point: Proper express annexation means the benefit runs automatically to successors of the benefited land.
- Application: Draft the benefiting land precisely and state that the benefit is annexed to it.

Federated Homes Ltd v Mill Lodge Properties Ltd [1980] 1 WLR 594

- Context: Whether the benefit of covenants ran automatically.
- Key point: s78 LPA 1925 generally annexes the benefit of restrictive covenants to land unless excluded.
- Application: Treat s78 as the default route for benefit to run; use clear drafting if you wish to disapply it.

Halsall v Brizell [1957] Ch 169; Rhone v Stephens [1994] 2 AC 310

- Context: Paying for and using estate roads and sewers.
- Key point: You cannot take a deed’s benefit without its directly linked burden, but this principle is narrow and cannot make general positive covenants run.
- Application: Use this for tightly linked facilities where the successor has a genuine choice to accept the benefit.

Elliston v Reacher [1908] 2 Ch 374; Texaco Antilles Ltd v Kernochan [1973] AC 609

- Context: Mutual enforcement in estates.
- Key point: Building schemes allow plot owners to enforce common restrictions; schemes can collapse under single ownership but revive once plots are separately owned again.
- Application: For estate covenants, gather evidence of a defined area, a common vendor, and a shared plan of restrictions.

Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287; Jaggard v Sawyer [1995] 1 WLR 269; Wrotham Park Estate v Parkside Homes [1974] 1 WLR 798

- Context: Remedy selection for breach.
- Key point: Injunctions are typical for restrictive covenants; damages may be awarded instead if the Shelfer criteria are met. Negotiating damages may be considered where a promise has been used without consent.
- Application: When advising on enforcement, weigh the practicality of an injunction against the likely measure of damages.

## Practical Applications

Title review and due diligence

- For registered land: Check the Charges Register for notices of restrictive covenants and any restrictions securing positive obligations. Review title documents for covenant wording and plans delineating benefited and burdened land.
- For unregistered land: Search Class D(ii) land charges against the correct names. For pre-1926 covenants, assess actual, constructive, or imputed notice.
- Ask targeted enquiries about estate facilities, service charge arrangements, and any indemnity covenants or rentcharges.

Drafting and structuring covenants

- Identify the benefited land precisely; use express annexation language to attach the benefit to that land.
- State intention for the covenant to bind successors (without relying solely on s79 LPA 1925).
- For positive obligations, consider:
  - Chains of indemnity covenants,
  - A rentcharge mechanism tied to performance,
  - Land Registry restrictions requiring a management company’s consent before dispositions.
- In estates, document a coherent building scheme: defined area plan, standardised restrictions, and a clear statement of mutual benefit.

Enforcement strategy

- For breaches of restrictive covenants, consider a prompt application for an interim injunction. Keep evidence of title, annexation, and notice ready.
- If an injunction would be oppressive, seek damages in substitution under s50 Senior Courts Act 1981; consider whether negotiating damages are appropriate.
- Always assess whether a s84 LPA 1925 application to modify or discharge is likely from the other side.

Leasehold covenants

- Check for forfeiture clauses and the need for a s146 LPA 1925 notice, which must specify the breach and allow time to remedy where possible.
- Some breaches (e.g., an unlawful subletting) may be hard to remedy; courts focus on proportionality and the availability of relief from forfeiture (Scala House v Forbes [1974] QB 575).

Risk management

- Where a historic covenant is of uncertain enforceability, consider indemnity insurance rather than contact with potential beneficiaries.
- For development sites, test likely s84 prospects early and keep planning and amenity evidence ready.

## Summary Checklist

- Classify the covenant: positive or restrictive.
- Confirm the benefited and burdened land; check that the covenant “touches and concerns”.
- For restrictive covenants:
  - Registered land: is there a notice on the Charges Register?
  - Unregistered land: is there a valid Class D(ii) registration (post-1925) or notice otherwise?
- Has the benefit been properly annexed (expressly or via s78 LPA 1925) or assigned?
- For estates, is there evidence of a building scheme (defined area, common vendor, mutual intent)?
- On breach, consider injunction first; assess Shelfer criteria for damages in substitution; remember s50 SCA 1981.
- For leaseholds, serve a compliant s146 notice before forfeiture; consider whether the breach is remediable.
- If a covenant frustrates reasonable development, evaluate an application under s84 LPA 1925 and gather evidence on benefit, change of neighbourhood, and potential compensation.

## Quick Reference

| Topic                           | Authority                                    | Key takeaway                                                                   |
| ------------------------------- | -------------------------------------------- | ------------------------------------------------------------------------------ |
| Burden of positive covenants    | Austerberry; Rhone v Stephens                | Does not run with freehold; use linked-benefit routes sparingly                |
| Burden of restrictive covenants | Tulk v Moxhay                                | Can bind successors in equity if negative, intended, and with notice           |
| Benefit running with land       | s78 LPA 1925; Federated Homes; Rogers        | Benefit annexed to land runs automatically if it touches and concerns          |
| Registration (restrictive)      | LRA 2002 s32; LCA 1972 Class D(ii)           | Registered: enter a notice; unregistered: register as D(ii) or risk being void |
| Remedies for breach             | Shelfer; Jaggard; s50 SCA 1981; Wrotham Park | Injunction is usual; damages may substitute; negotiating damages in some cases |
| Modification/discharge          | s84 LPA 1925; Re Cordwell; Re Martin         | Upper Tribunal may modify/discharge; planning permission not decisive          |

Covenant Land Law: Principles, Cases and Practical Guidance