“the covenantor” is the person who gives the covenant and “the covenantee” is the person who takes the benefit of the covenant. (I use them below to mean the original parties to the deed only.)
There are two types of covenant: restrictive and positive.
Restrictive covenants are negative in nature. You can comply with a restrictive covenant simply by doing nothing. Examples of restrictive covenants are.
Not to use the property for business purposes
Not to keep poultry
Not to build any outhouses
A covenant can be restrictive even if phrased positively, e.g.
To use the dwellinghouse for residential purposes only is equivalent to Not to use the dwellinghouse otherwise than for residential purposes
A positive covenant requires the covenantor to do something and will usually involve expenditure. The most usually encountered positive covenants relate to the construction and/or maintenance of boundary features. A covenant can be positive if phrased negatively e.g.
Not to allow the fence to fall into disrepair is equivalent to To keep the fence in repair
All covenants are enforceable by the covenantee against the covenantor – even after the covenantor has disposed of the land - the only exception is where the deed provides that the covenantor is not to be liable for any breach after he has disposed of the land.
After that it gets complicated. The question of whether a restrictive covenant is enforceable against a successor to the covenantor is so involved that it would be impossible to explain it briefly and very difficult to explain it at length.
The enforceability of positive covenants is more straightforward, but the following should nevertheless be treated as an outline only.
If A covenants with B to maintain a fence then the obligation can be enforced by B even if A moves on.
If A sells to C and C fails to maintain the fence B cannot sue C. He can however sue A. A, if he was properly represented when he sold the property, will have taken an indemnity covenant from C. Therefore, if A is sued by B, A can join C in the action. This is the theory. Of course the more time passes the more chance there is that A will be untraceable or have gone to the great garden in the sky where there are no NFH’s, who will all return to whence they came. The chain of indemnity can be quite long when C sells to D who sells to E and so on. It is not unusual for the chain of indemnity to be broken. For all practical purposes, particularly in relation to the average residential property, when the covenantor moves on the covenant becomes unenforceable.
If B sells to X before A moves on then the benefit of the covenant will usually pass to X.
greater clarity? You've got to be joking I was going really great until:
By the time I got to 'E' and 'X' I was just busting to go and open a can of 'alphabet soup!'Therefore, if A is sued by B, A can join C in the action.
The next property I buy will have included the covenant that I bear total responsibility for all boundaries - without question!
Thanks conveyancer. I've now got a sheet of A3 paper out with little plots drawn over it with A, B,C etc. Hope you have a good night while I'm trying to fathom this all out.
shame I've had to recall an old schoolteacher saying that I'm not too bright
My Deeds read:
The transferee hereby covenants with the transferors as follows:-
1) not to erect aerials on the roof or outside of the property transferred.
2) to forever maintain the walls marked "T" on the said plan 1.
3) to pay one sixth cost of:-
a) The repair and maintenance of the drive hatched yellow on the plan and not to obstruct or leave vehicles thereon so as to cause an obstruction and
b) maintaining and renewing the pipes sewers drains and pumping station servicing the property transferred and including the cost to the transferors of the electricity consumed to run the pumping station.
I am not the transferee, the previous owner is.
So, am I right in thinking that I cannot erect an external aerial, I don't have to maintain the wall but my predecessor might have to (if found), I can't obstruct the drive but I don't have to pay for the maintenance (no conditions contained in the ROW) and I don't have to pay anything towards the pump and sewers?
This is all theoretical of course, I've always been happy to pay my bit. It seems fair.
The covenant may not be enforceable. It depends - please don't ask on what.
I don't have to maintain the wall but my predecessor might have to (if found)
Correct, but there is a possibility of being made liable via the indemnity route.
I can't obstruct the drive
Same as for aerial, except that there is a separate rule that you cannot obstruct anyone's right of way.
but I don't have to pay for the maintenance (no conditions contained in the ROW) and I don't have to pay anything towards the pump and sewers?
Although the exercise of the rights may not be expressed to be subject to payment I suspect (I am not sure) that the rule that you cannot take a benefit without the burden will apply.
I'm pretty sure I never signed any indemnity covenant. The conveyancer I use is detested by the local estate agents for being "over-efficient" and holding up or even losing sales. That's why I chose him.there is a possibility of being made liable via the indemnity route.
Probably, but there is also a neg covenant on the neighbour that restricts them to putting no more than 2 properties on the pump. They are now trying to put a third one on so if I do decide to not pay I won't be feeling guilty....,I suspect (I am not sure) that the rule that you cannot take a benefit without the burden will apply.
If positive covenant in place to "maintain and keep fences in good repair",and the original covenantee is the first purchaser from the developer(i.e houses not very old)-
WHo can enforce the covenant,against them-NFH??
In our case covenantor removed fence to try and claim our very very much older land behind their fence(and there is a planning drawing referenced and quoted in their deeds that shows the exact and continuous line of their fences in place),not where they have said in court ...
WHo can enforce???
Curious to see if you have any other ideas other than sue the bastards!
I'm sure the intention of the Covenant was for it to remain a quiet semi-rural circle and that is why there was nospace for a road to the centre. I don't think that 100 years ago, they could even imagine a John Prescott or thestress of immigrants in thisarea or that the local Council could be over-ruled. I think the maening was that you couldn't keep pigs or change a house into a shop, or put extra buildings up for profit. But a building site is a business for profit, even a factory wouldn't have such a vast slab of concrete. There is no difference in that use thancramming in more people and cars into the centre than in the whole area surrounding it. This covenant has been added to every transaction to every property involved, witnessed by Solicitors right upto the latest sale 4 tears ago.
I'm told that it is still valid and capable of being enforced, but how much will this cost and has J.P. office the right to ignore or overturn it? Grateful for any similar problems and advice.
I do not totally understand your circumstances so do feel in appropriate to answer.
Hang on in there and i am sure somebody will be along to explain.
Boundary disputes!!!! 4 years still going!!!!!!
Let's get away from land for a moment.
Suppose Aunt Maud has bought a car for her nephew Tom. Before handing the car over, she extracts a promise from Tom that he will take her shopping every Friday. Tom gives the promise. Clearly Tom is now under an obligation to take Aunt Maud shopping every Friday.
But what if Tom sells the car to Jim? Is Jim obliged to take Aunt Maud shopping? Of course not, you would say; the agreement was between Aunt Maud and Tom. The obligation to take Aunt Maud shopping does not go with the car - it was a purely personal obligation.
Suppose when Tom sold the car to Jim, Jim agreed with Tom that he would take Aunt Maud shopping, what then? Well, that agreement is between Tom and Jim and cannot be enforced by Aunt Maud; lawyers would say that there is no "privity of contract" between Jim and Aunt Maud. What can Aunt Maud do? Well, she can sue Tom and Tom, if he does not want to pay compensation to Aunt Maud, will join Jim in the action.
A third possibility is that when Tom sells the car to Jim he gets Jim to enter into an agreement with Aunt Maud that he will take Aunt Maud shopping. Then there is privity of contract between Aunt Maud and Jim and Aunt Maud will be able to sue Jim if he fails to keep to the agreement. She will also be able to sue Tom, since their original agreement still stands. If Tom wants to be free of the obligation he would have to negotiate a release from Aunt Maud.
(For the record, in some cases the obligation would have to be imposed by deed, but we need not go into that.)
The situation with regard to land is similar - the fact that land is involved is largely irrelevant.
So, if Aunt Maud sells some land to Tom and extracts a covenant that he will erect and maintain a fence between the land and the land that Aunt Maud retains, the covenant is enforceable by Aunt Maud and if the fence falls into disrepair after Tom sells, she can still sue Tom.
If the buyer is Jim and Jim covenants with Tom that he will comply with the covenant then we have the situation that if the fence falls into disrepair Aunt Maud can only sue Tom and if she does, Tom will have to join Jim in the action.
It will rarely be the case that Jim will enter into a direct covenant with Aunt Maud or that Tom will be released.
The above only deals with the question of who the obligation can be enforced against, not who can enforce the obligation and is necessarily not the whole story. However, the rule of thumb is this: if you were not the person who originally entered into the obligation, the obligation probably cannot be enforced against you by your neighbour.