chapter  11
32 Pages

Freehold covenants

WithJudith Bray

This chapter aims to distinguish between covenants at common law and covenants in equity. It explains why the law does not uphold positive covenants. The chapter explores the consequences of a breach of a covenant. It examines the way that covenants can be discharged or modified. The chapter describes the proposals for reform of the law on freehold covenants. The incompleteness of the law was specifically attributed to the failure to make provision for the enforcement of the positive covenants relating to freehold land against successors in title to the original covenantor. Annexation involves the ‘nailing’ of the covenant to land. The land itself must be clearly identified. Once the covenant is annexed either expressly or impliedly the benefit will pass in equity on each successive transfer of the land. If one landowner can prevent a neighbouring landowner from building on his land that will increase the enjoyment of the claimant for the present.