Land Law – Kate Lambert (1)

There are three devices which have evolved at common law where positive covenants can be enforced against successors in title of the servient/burdened land (either directly or indirectly): e Create a lease e Indemnity covenant e The doctrine of mutual benefit and burden – Halsall v Brizzell Dealing with each in turn: Create a lease Instead of selling the land freehold, the landowner can create a lease. In Chapter 6 we will see that both restrictive and positive covenants are binding on a successor in title to a tenant.

Although this ensures that positive covenants are enforceable, leases are less attractive to a buyer than the purchase of freehold land. This is because a lease must be created for a fixed duration (which will eventually come to an end) and not last forever like a freehold estate. Indemnity covenant An original covenantor remains bound by their promise as a consequence of privity of contract (see 4.1.5).

When the servient land is sold only the burdens of restrictive covenants pass to a successor in title (see 4.3). The original covenantor therefore remains bound by positive covenants. Upon the sale of the servient land (the land burdened by the covenant), it is normal conveyancing practice to require the buyer to enter into an indemnity covenant promising to observe positive covenants and indemnifying the seller for any loss incurred as a consequence of any breach. An indemnity covenant is then sought from each subsequent buyer of the servient land creating a chain of indemnity covenants.

In the event of the original covenantor being sued for a breach of a positive covenant (by the original covenantee or their successor in title), this enables the original covenantor to sue their successor on the indemnity and so on down the line. It does not enable the original covenantor to sue the current owner who is in breach as there is no privity of contract between them. It is, therefore, an indirect method of enforcement.

A chain of indemnities is only as strong as its weakest link.

Updated by Kate Lambert Second edition published 2022 by The University of Law, 2 Bunhill Row London EC1Y 8HQ © The University of Law 2022 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior written permission of the copyright holder, application for which should be addressed to the publisher.

Contains public sector information licensed under the Open Government Licence v3.0 First edition published 2021 : British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library. ISBN 978 1 915698 10 0 Preface This book is part of a series of Study Manuals that have been specially designed to support the reader to achieve the SQE1 Assessment Specification in relation to Functioning Legal Knowledge. Each Study Manual aims to provide the reader with a solid knowledge and understanding of fundamental legal principles and rules, including how those principles and rules might be applied in practice.

This Study Manual covers the Solicitors Regulation Authority’s syllabus for the SQE1 assessment for Land Law in a concise and tightly focused manner. The Manual provides a clear statement of relevant legal rules and a well-defined road map through examinable law and practice. The Manual aims to bring the law and practice to life through the use of example scenarios based on realistic client-based problems and allows the reader to test their knowledge and understanding through single best answer questions that have been modelled on the SRA’s sample assessment questions.

For those readers who are students at the University of Law, the Study Manual is used alongside other learning resources and the University’s assessment bank to best prepare students not only for the SQE1 assessments, but also for a future life in professional legal practice. We hope that you find the Study Manual supportive of your preparation for SQE1 and we wish you every success. The legal principles and rules contained within this Manual are stated as at 1 June 2022.

This is a short excerpt from the opening of “” by Unknown, quoted for review and introduction purposes. All rights belong to the copyright holders.

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