Covenants

A covenant is simply an agreement made by deed. There are freehold and leasehold covenants.

Freehold Covenants

These are commonly referred to as the restrictive covenant as a promise to refrain from using ones
land in a certain way. A good summary was provided in the judgement of the case Rhone vStephens
in, “Equity can thus prevent or punish the breach of a negative covenant which restricts the user of
land or the exercise of other rights in connection with land”.

They can be enforced against subsequent owners of the land if the following conditions are met, 1.
The covenant must be negative i.e. a promise not to do something with the land, 2. Must provide
some benefit to nearby land owned by the person to whom the covenant is made and 3. The parties
must have decided that the burden and the benefit of the covenant should run with the land

Smith v River Douglas Catchment Board The river catchment board are deemed liable for damages
for not properly repairing the bank for flooding despite there being a new owner from the one who
paid the board for the repairs.

Tulk v Moxhay – The court will enforce an equity attached to land by the owner and bid successive
owners to it provided the price be affected by the covenant.

Rhone v Stephens – positive covenants cannot be enforced between owners of freehold estates.
Distinction made was that “enforcement of a positive covenant compels an owner to exercise his
rights... a negative covenant lies in property as it deprives the owner of a right over it”. Held that
“equity does not contradict the common law by enforcing a restrictive covenant against a successor
in title of the covenator but prevents the successor from exercising a right which he never acquired”.

Re Nisbet and Potts Contract – Held that a title acquired by adverse possession is not paramount to,
and does not destroy the equitable right of persons entitled to the benefit of prior restrictive
covenants.
Leasehold Covenants

Some covenants are implied in leases by common law or statute but most are expressly agreed by
the original parties to the lease.

Implied landlord covenants are to afford the tenant, quiet enjoyment of the leased premises and
that they will not derogate from the grant of lease. In leases of dwelling houses for less than 7 years
there is also a covenant that the landlord should maintain the premises.

The tenants implied covenants are to pay rent, not commit waste and to use the premises in a
tenant-like manner.

Southwark LBC v Mills – Complaints of inadequate sound insulation does not succeed on action on
the covenant for quite enjoyment not on action on nuisance. Not nuisance, neighbours are not
committing a nuisance by the normal use of a residential flat. Not in violation of quiet enjoyment as
the covenant does not apply to things done before the grant of the tenancy even though this may
have continuing consequences for the tenant as in Anderson v Oppenheimer.

Liverpool City Council v Irwin – Wilberforce agrees with decision in lower court of Denning, there
should be implied a covenant of a landlord to keep lifts and stairs safe and fit for use. Wilberforce
disagrees with Denning however in that courts should not overly manipulate contracts and by
allowing a small sum of damages for the defective cistern in the maisonette

Quick v Taff Ely Borough Council – Confirms that the landlords repairing covenant in a tenancy
agreement is limited to an obligation only to keep the structure and exterior of the house in repair.

Warren v Keen – If house falls into disrepair through time of fair wear and tear, tenant has no
obligation to repair it, his only duty is to use the premises in a ‘tenant like’ manner, doing the ‘little
things’ expected of a home owner

London Diocesan Fund v Avonridge – Discussion of effectiveness and provisions of Landlord and
Tenants Act (1995). Sections 5 remedied the fact that a tenant remained liable for performance of
the tenants covenants for the entire duration of the lease even if he had parted company with the
lease, providing that where a tenant assigns the whole of the premises demised to him under a
tenancy he is released from the tenant covenants of the tenancy. Sections 6 and 8 provide the
landlord with a means to release himself from the landlords covenants though he has to apply to the
tenant for such a release and this will only be realised if the tenant consents, fails to object, or the
court decides such an application to be reasonable. Section 25 provides a comprehensive anti-
avoidance provision.