Students: Chapter 8

Welcome to the Student Resources for Chapter 8 of Modern Land Law. Here you will be able to practice your exam technique with a set of essay questions; check your understanding of what land law is with our multiple-choice quiz and short-answer questions; test yourself on your knowledge of the key statutes and case law; and listen to a short lecture podcast on the latest developments within land law.

Click on the tabs below to view the resources:

Essay questions

Question 1

In 2004, Laura, became the registered freehold proprietor of a plot between Puzzle Passage, Walker's Way and Main Road. In 2005 Laura sold the gatehouse, No. 3, but retained the rest of the land now comprising Nos 5, 7, 9 and 11. She decided that she would construct four houses on the plot and sell these off. Houses 5, 7, 9 and 11 were duly constructed. Laura retains the title to No. 11.

In 2006, Laura transferred freehold title of No. 5 to Paul. Paul covenanted not to build outbuildings and to repair the fence between No. 5 and No. 3. Three months later, Laura transferred the title to No. 7 to Queenie and No. 9 to Ronald. Both promised in the deed of transfer not to build outbuildings on their property.

In 2007, Paul entered into an agreement embodied in a deed with Queenie that he would not keep cats in his house as Queenie was violently allergic to cats. Two years later, Paul transferred the freehold title to Ben who became registered proprietor. The following year Queenie transferred her property to Alison.

Recently, Ben has started to keep cats in the property which has caused Alison's dog to get very nervous. Alison wishes to prevent Ben from keeping cats in No. 5. The fence between No. 5 and No. 3 has also started to deteriorate, much to Laura's displeasure. Ronald is also annoyed that Ben has constructed a stone hut in the back his garden which Ronald believes is ugly and reduces the value of the houses in the area.

Advise Alison, Laura and Ronald.

Question 2

A. In 2004, The Flamingo, a nightclub, was set up at No. 15 Labyrinth Lane. The Flamingo is owned by Good Night Out Enterprises who are the registered freehold proprietors of No. 15. When Good Night Out Enterprises purchased No. 15 in 2004 from Minnie they did not know that Minnie had earlier entered into a covenant with Nestor, the registered freehold owner of No. 10 Labyrinth Lane, that Minnie would not operate a nightclub at No. 15. Nestor at this time, although registered owner of No. 10, slept at No. 15 as he worked for Minnie as a night-time security guard. When Good Night Out Enterprises bought the property, Nestor stayed on in the property as a bouncer and slept above the club. This arrangement continued for six years. In late 2010, Nestor sold No. 10 Labyrinth Lane to Poppy. Poppy is very unhappy with the presence of The Flamingo in the area and wishes to force Good Night Out Enterprises to stop running the nightclub.

B. To add to Good Night Out Enterprises' woes, Florence, the licensee resident of No. 16 intends to bring an action against Good Night Out Enterprises in nuisance, claiming that the nightclub makes excessive noise which is disturbing her sleep.

C. In addition, Nestor is now arguing that as he had been paying a £15 a month charge to Good Night Out Enterprises for his upstairs flat, he has a lease over the property which binds Good Night Out Enterprises. Good Night Out Enterprises had agreed with Nestor that they would not enter the flat without his permission in order to protect his privacy.

Advise Good Night Out Enterprises.

Question 3

Should the law relating to freehold covenants treat positive and restrictive covenants in the same way?

True/False Quiz

With the exception of the first three questions, answer the questions below based on the facts of this short scenario. A, the registered proprietor of No. 1 Main Street, in 2006, agreed to sell two houses he had built on his land to B and C. He agreed with both that they would not carry on trade on their properties; that they would maintain the fencing on his property and that they would contribute to the costs of maintaining his roof. B has sold his house to D who does not wish to maintain the fence or the roof. C has died and his house was transferred to E by will. E wishes to carry on his business at the house.

Please select a quiz..

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Statute Quiz

Here you should outline the main effect, role, etc. of the provisions below. This is designed as a guide to the most important provisions, and as a means to improve your recall of the statutory provisions.

Law of Property Act 1925, section 79

Law of Property Act 1925, section 79 means that in the absence of a contrary intention, the burden of a restrictive covenant is deemed to be attached to the land. Book location: 8.5.4

Law of Property Act 1925, section 78

Law of Property Act 1925, section 78 has the effect of statutorily annexing the benefit of every covenant to each and every part of the benefited land. Book location: 8.6.1

Land Registration Act 2002, section 28 and 29

Land Registration Act 2002, section 28 and 29 explain the priority rules relating to registered land. Book location: 8.5.5

Law of Property Act 1925, section 56

Law of Property Act 1925, section 56 means a person will be regarded as an original covenantee, even if they are not actually a party to it, provided the covenant was intended to confer a benefit on that person as a party and they were in existence and identifiable at the time of the covenant. Book location: 8.4.5

Law of Property Act 1925, section 1(2)

Law of Property Act 1925, section 1(2) lists those property rights capable of subsisting at law.

Case Law Quiz

Here you should attempt in one or two sentences to outline the main points to be taken from these cases and also three or four key words with their subject matter. This should assist in revision.

Rhone v. Stephens [1994] 2 AC 310

Burden at law. It is not possible for the burden of a covenant to run at law. Book location: 8.5

Federated Homes v. Mill Lodge Properties [1980] 1 All ER 371

Section 78. The case explains that section 78 has the effect of statutorily annexing the benefit of every covenant to each and every part of the benefited land. Book location: 8.6.1

Tulk v. Moxhay (1848) 41 ER 1143

Burden in equity. The principle in Tulk v. Moxhay allows the burden of a negative covenant to run in equity where the covenant touches and concerns the land, was imposed to benefit the land belonging to the original covenantee, and it was intended to run with the land. Book location: 8.5

Elliston v. Reacher [1908] 2 Ch 374

Building scheme. The benefit of a covenant in equity will run under the 'building scheme' rule where these are: that there must be a common vendor; that the land must be laid out in identifiable plots; that the benefit of every purchaser's covenants must be intended to be mutually enforceable (i.e. to pass to every other purchaser); that the purchasers must have bought the land on condition that this was intended and that the area subject to the scheme must be well defined. Book location: 8.6.2

Smith & Snipes Hall Farm v. River Douglas Catchment Board [1949] 2 KB 500

Original covenantor. A covenantor, even if he never had any land burdened by the covenant, is liable on a covenant at law (but not in equity) due to his promise. Book location: 8.4.4

Short Answer Questions

What is the effect of section 79 Law of Property 1925?

It introduces a presumption that the burden of a restrictive covenant was intended to run with the land. It is a presumption that can be rebutted by the introduction of positive evidence to the contrary. Book location: 8.5.4

Under which Class must the burden of a restrictive covenant be registered in cases of unregistered land?

Class D(ii). Book location: 8.5.5.2

Podcasts

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Podcast Script

This podcast discusses the operation of section 78 and section 79 LPA 1925 in relation to freehold covenants.

The previous podcast in this series discussed easements and the methods of impliedly creating an easement. This podcast will look at restrictive covenants, or freehold covenants. In particular we will be considering the operation of Section 78 & 79 Law of Property Act 1925. For more information on the sorts of interests that can be freehold covenants, see Chapter 8.

The benefit of a restrictive covenant is an equitable interest in freehold land belonging to another. It allows the beneficiary to prevent the freeholder from using his land in a certain way. For example, a restrictive covenant could prevent a freeholder from using his land for trade purposes, or could limit the number of dwellings that could be built on the land.

They arise form covenants, i.e. promises made by deed. Such interests can attach to the land and thus bind a purchaser. They should be entered as a notice on the register.

The ability of these covenants to pass with the land is complex and the operation of the relevant rules is governed and influenced by Section 78 and 79 of the LPA 1925. These statutory provisions are however quite difficult to understand and cause much difficulty. Despite this, it is important to try to get to grips with them and this podcast should help you do that.

Section 78

Section 78 is concerned with the benefit of a restrictive covenant. It can have the effect of annexing the benefit of the covenant to the benefitted land so that a purchaser from the covenantee can also take advantage of the covenant. It was decided in Federated Homes v Mill Lodge Properties that Section 78 means that the benefit will be annexed to each and every party of the benefitted land as long as that land can clearly be identified from the covenant itself and the land is capable of being benefitted by that covenant.
The benefit of the covenant will run both at law and in equity. The operation of this section can however be expressly excluded.

Section 79

Section 79 by contrast is concerned with the burden of the restrictive covenant. In order to run with the land, it must be intended to run with the land. Section 79 introduces a presumption that this intention exists. This presumption can be rebutted by evidence of a contrary intention.

The section says that “unless a contrary intention is expressed, [the restrictive covenant will] be deemed to be made by the covenantor on behalf of himself, his successors in title and the persons deriving title under him”.

This makes it much easier to demonstrate that the burden of a restrictive covenant should run with the burdened land. The operation of this section can however also be excluded, either expressly, or impliedly.

The overall affect of these two sections has been to make the running of the benefit and the burden relatively straightforward but they do operate in different ways. Section 78 annexes the covenant to the land unless its operation is excluded. Section 79 merely introduces a presumption of an intention that the burden should attach to the land. Thus the scope of Section 78 is wider. Section 78 has the effect of meaning that the subsequent purchaser need not have the same title as the original covenantee. Section 79 has not been interpreted in this way. When you are looking at this topic, it will be worth thinking about whether Sections 78 & 79 should be treated differently like this.

In the next podcast we will be considering licences and in particular the different kinds of licences. Today’s key concepts- Sections 78 and 79 Law of Property Act 1925.

Modern Land Law, 9th Edition