ABSTRACT
INTRODUCTION In Chapter 5 on leases, we examined the law surrounding the operation of leasehold covenants. However, it is not only landlord and tenant who may wish to enter into promises affecting the mode of use of their property. Freeholders may also wish to control the use that neighbours may make of their land, as where owners of residential property may wish to preserve the non-business character of their area, or the owners of an industrial estate may wish to limit the type of activity carried on there. Obviously, freeholders do not stand in a relationship of landlord and tenant with each other and the rules of leasehold covenants are inapplicable. Consequently, a set of principles have developed – mainly in connection with restrictive covenants – that govern the running of covenants between freeholders. Like leasehold covenants (and easements), each freehold covenant comprises a ‘benefit’ and a ‘burden’. It is always necessary, when considering problems in this particular area, to remember that before a claimant can sue a defendant on a particular covenant, the benefit must have passed to the claimant and the burden must have passed to the defendant. Indeed, it can quite easily happen that the benefit of a covenant has passed, but the burden has not, or vice versa. So it is imperative when dealing with these issues to consider the issue of the benefit of a covenant separately from questions relating to the burden.
