Freehold Covenants

Introduction

A freehold covenant is a promise about how freehold land may be used. It is usually set out in a deed on a sale or transfer and can bind future owners. The land burdened by the promise is the servient tenement; the land that benefits is the dominant tenement. If drafted and protected properly, a covenant can control building, use, and maintenance across an estate long after the original parties have moved on.

Two features determine how far a covenant “runs with the land”:

• Its character (positive vs negative/restrictive)
• Whether it touches and concerns the land, shows an intention to bind successors, and is properly protected on the register (or by land charges for unregistered land)

This guide focuses on the rules in England and Wales and the practical steps that conveyancers, developers, and owners take to create, protect, enforce, vary, or remove covenants.

What You'll Learn

• What freehold covenants are and why dominant and servient land matter
• The difference between positive and negative (restrictive) covenants
• When the burden and benefit pass to successors in title
• How “touch and concern” and intention affect enforceability
• How registration and notice work in registered and unregistered land
• Routes to modify or discharge covenants and when they end
• Key cases: Tulk v Moxhay, Rhone v Stephens, P&A Swift, Halsall v Brizell, Federated Homes
• Practical steps for drafting, due diligence, compliance, and remedies

Core Concepts

What is a Freehold Covenant?

• Nature: A contractual promise relating to land, typically contained in a deed on sale/transfer (LPA 1925 s.52; LPMPA 1989 sets deed formalities).
• Parties and land:
  • Servient tenement: land burdened by the covenant
  • Dominant tenement: land that benefits
• Intention: The document should show that the promise is to bind successors. Intention is often expressed and may be implied (LPA 1925 s.79 for the covenantor; s.78 for annexation of benefit).
• Subject matter: The promise must “touch and concern” land rather than a purely personal benefit.

Positive vs Negative (Restrictive) Covenants

• Negative (restrictive) covenants
  • Require the owner not to do something (e.g., no business use, no building above one storey).
  • The burden can run in equity if conditions are met (Tulk v Moxhay).
• Positive covenants
  • Require the owner to do something (e.g., maintain a wall, contribute to road costs).
  • As a rule, the burden does not run with freehold land (Austerberry v Oldham; Rhone v Stephens).
• Workarounds for positive obligations
  • Chain of indemnity covenants: each buyer promises the seller to perform and to pass on the same promise. Practical, but only enforces “backwards” along the chain.
  • Benefit and burden principle: A person cannot take a linked benefit without accepting the corresponding burden (Halsall v Brizell), but this is narrow. The benefit must be conditional on compliance with the burden and capable of being declined (Thamesmead Town v Allotey).
  • Estate rentcharge or management company model: Common on modern estates to secure contributions to services. Often supported by a Land Registry restriction requiring buyers to enter into a new deed of covenant on each transfer.

Touch and Concern, Intention, and Passing the Benefit

• Touch and concern (P & A Swift Investments v Combined English Stores)
  • The covenant must affect the nature, quality, mode of use, or value of land, not just a person.
• Passing the benefit
  • Annexation: LPA 1925 s.78 can automatically annex the benefit of a restrictive covenant to land if the document shows the land intended to benefit. Federated Homes v Mill Lodge confirms a broad approach to annexation.
  • Assignment: The benefit can be expressly assigned to a purchaser of the dominant land.
  • Building schemes: Where lots are sold on a common plan with mutual covenants intended to be enforceable between owners (Elliston v Reacher). Useful for estate-wide control of use and design.
• Burden running in equity (restrictive only)
  • Requirements from Tulk v Moxhay: the covenant is negative in substance, touches and concerns the land, benefits identifiable dominant land, was intended to bind successors, and the successor had notice (now usually by registration).

Registration and Notice

• Registered land
  • Restrictive covenants are protected by entry of a notice on the servient title’s charges register (LRA 2002 s.32).
  • If not protected by notice, most purchasers for valuable consideration take free of it (LRA 2002 s.29), although existing owners and volunteers may still be affected.
  • A notice does not make a positive covenant bind successors; it simply protects priority of the recorded right.
  • Restrictions on the register (LRA 2002 s.40) can be used to control dispositions unless the buyer enters into a new deed of covenant (common for estate management).
• Unregistered land
  • Restrictive covenants created after 1 January 1926 must be registered as a Class D(ii) Land Charge against the name of the servient estate owner (Land Charges Act 1972).
  • Failure to register makes the covenant void against a purchaser for money or money’s worth; volunteers remain bound.
  • Very old (pre-1926) covenants are subject to the doctrine of notice.

Modification, Discharge, and Ending a Covenant

• By agreement: Those entitled to the benefit can release or vary the covenant by deed.
• By tribunal: The Upper Tribunal (Lands Chamber) can modify or discharge a restrictive covenant under LPA 1925 s.84 on grounds such as:
  • The covenant is obsolete due to changes in the character of the property or neighbourhood
  • It impedes reasonable use and either does not injure those entitled to the benefit or compensation is adequate
  • Those entitled to the benefit have agreed
• Compensation: The tribunal can award money in return for modification or discharge.
• Merger: If the dominant and servient tenements come into the same ownership and possession, a restrictive covenant will usually be extinguished.
• Planning permission: Consent from the planning authority does not remove a private covenant. Separate release or tribunal modification is needed.

Key Examples or Case Studies

Tulk v Moxhay (1848)

• Context: Purchaser had notice of a promise not to build on Leicester Square gardens.
• Key point: A negative covenant can bind a successor in equity if it benefits land and the successor takes with notice.
• Use in practice: Core authority for enforcing restrictive covenants against later owners.

Rhone v Stephens [1994] AC 310

• Context: Positive obligation to maintain a roof over neighbouring property.
• Key point: The burden of a positive covenant does not run with freehold land.
• Use in practice: Do not rely on a positive covenant binding successors; use indemnity chains, restrictions, and management structures.

Halsall v Brizell [1957] Ch 169; refined by Thamesmead Town v Allotey [1998]

• Context: Estate owners used roads and drains and were asked to contribute to costs.
• Key point: You cannot take a benefit without the linked burden, but only where the benefit is conditional and can be declined. It is not a general route to impose positive repair obligations.
• Use in practice: Helpful for shared facilities where use is optional and conditional.

P & A Swift Investments v Combined English Stores [1989] AC 632

• Context: Whether a covenant “touched and concerned” land.
• Key point: The promise must affect the nature, quality, mode of use, or value of the land to run.
• Use in practice: Screening test for both burden (in equity) and benefit running.

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

• Context: Annexation of restrictive covenants.
• Key point: LPA 1925 s.78 can annex the benefit to land without elaborate wording if the instrument shows the benefiting land.
• Use in practice: Drafting should clearly identify the dominant land to lock in automatic benefit.

Practical Applications

• For buyers and their solicitors
  • Review the charges register for restrictive covenants and read the original deed wording.
  • Confirm the benefiting land is identified and whether a building scheme exists.
  • Check for historic or current breaches (extensions, business use, alterations). Obtain consent, a deed of release, or indemnity insurance as appropriate.
  • Be cautious: contacting a potential covenantee before arranging insurance can invalidate cover.
• For sellers and developers
  • Use clear drafting that identifies the dominant and servient land and states that covenants are intended to bind successors.
  • For estate control, adopt a building scheme with consistent restrictions and mutual enforceability.
  • To secure positive obligations (roads, lighting, landscaping), use a management company plus:
    • A deed of covenant on each sale; and
    • A Land Registry restriction preventing registration of a transfer until the buyer enters the deed; or
    • An estate rentcharge with clear conditions.
  • Register restrictive covenants by notice on first registration or immediately on completion.
• For lenders
  • Check that any apparent breaches are regularised or insured. A restrictive covenant can lead to injunctions that reduce value or delay sales.
• Dealing with breach
  • Remedies include injunction (to stop or remove works) and damages in lieu (Senior Courts Act 1981 s.50; negotiating damages are available only in limited situations following One Step v Morris-Garner).
  • Negotiation is common: a deed of release or variation with compensation.
  • If the covenant is outdated or blocks a reasonable scheme, consider an application to the Upper Tribunal under LPA 1925 s.84.
• Registration checklist
  • Registered land: protect by notice (LRA 2002 s.32). Use restrictions to secure fresh covenants on each transfer.
  • Unregistered land: register a Class D(ii) Land Charge. Confirm correct name and spelling of the servient estate owner when lodging the charge.
• Planning and covenants
  • Planning permission does not cancel a restrictive covenant. Always check private rights separately and obtain releases or tribunal orders where needed.

Summary Checklist

• Identify the servient and dominant tenements
• Classify each covenant: positive or negative (restrictive)
• Confirm the covenant touches and concerns land
• Check intention to bind successors (express or implied under LPA 1925 ss.78–79)
• For restrictive covenants:
  • Registered land: ensure a notice is on the charges register
  • Unregistered land: ensure a Class D(ii) Land Charge is registered
• For positive obligations: consider management company + restriction, deed of covenant on each transfer, or an estate rentcharge
• Use chains of indemnity where appropriate, but know their limits
• Consider building schemes for estate-wide control
• For issues or redevelopment: negotiation, indemnity insurance, or an application under LPA 1925 s.84
• Keep in mind leading authorities: Tulk v Moxhay; Rhone v Stephens; Halsall v Brizell; P&A Swift; Federated Homes

Quick Reference