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 antiantiavoidance provision.
