ABSTRACT
The law concerning covenants made between freeholders (‘freehold covenants’) represents yet another way by which one landowner may control or affect the use of neighbouring land. 1 In some respects, the principles discussed below are similar to those seen in respect of leasehold covenants ( Chapter 6 ) and easements ( Chapter 7 ), in that a binding freehold covenant entails both a benefi t and a burden in respect of two estates in land held by different people. Similarly, covenants represent another species of proprietary obligation, albeit one that owes its origin to the remedial jurisdiction of the courts of equity. 2
In simple terms, ‘freehold covenants’ are, as their name implies, promises made by deed (‘covenants’) between freeholders, 3 whereby one party promises to do or not to do certain things on their own land for the benefi t of neighbouring land. Thus, the owner of house No. 1 may promise the owner of house No. 2 not to carry on any trade or business on his (No. 1’s) land, or the owner of house No. 3 may promise the owner of house No. 4 not to build above a certain height or without fi rst obtaining the agreement of the owner of house No. 4. 4 Consequently, the landowner making the promise on behalf of his land is the covenantor (where the burden lies), and the landowner to whom the promise is made is the covenantee and his land is where the benefi t lies. As in these examples, the great majority of covenants between freeholders are ‘restrictive’ (negative) in nature, in that they prevent a landowner from doing something on his own land, as opposed to requiring him to take positive action. Of course, that is not to say that ‘positive’ covenants cannot exist (e.g. a covenant to erect and maintain a boundary fence 5 ), but, as we shall see, the enforcement of a positive covenant between persons other than the original covenantor and cov - enantee currently is extremely diffi cult. 6 Consequently, much of the law in this area has concentrated on restrictive covenants, and many textbooks refer to this topic as ‘the law of restrictive covenants’. Similarly, ‘freehold covenants’ may be contrasted with ‘leasehold covenants’, the latter being promises taking effect as a provision in a lease made between a landlord and a tenant and usually (but not necessarily) referring to the land that is the subject matter of the lease.
