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Burden

This page contains details of a few points that are relevant to the "burden" of restrictive covenants. Unless the person who is seeking to breach of the restrictive covenant is in fact subject to the burden of the covenant it will not be possible to take action against him.

Section 79 of the LPA 1925 contains a word saving provision where the covenant was made on or after 1 January 1926:
    "(1) A covenant relating to any land of a covenantor or capable of being bound by him, shall, unless a contrary intention is expressed, be deemed to be made by the covenantor on behalf of himself his successors in title and the persons deriving title under him or them, and subject as aforesaid, shall have effect as if such successors and other persons were expressed.

    This subsection extends to a covenant to do some act relating to the land, notwithstanding that the subject-matter may not be in existence when the covenant is made.

    (2) For the purpose of this section in connection with covenants restrictive of the user of land 'successors in title' shall be deemed to include the owners and occupiers for the time being of such land."
Thus, unless the covenant is a personal covenant (Morrells of Oxford Ltd v Oxford UFC [2001] Ch 459) it will bind successors. Where the covenant was entered into prior to 1/1/1926 it is necessary to construe the covenant to see whether or not it was intended to be binding on successors

The restrictive covenant may have been created by an old fashioned "conveyance" entered into many years ago, or it may have been created in a Land Registry "transfer". Either way, where the land is now registered it will appear on the title of the land which is subject to the covenant; or at least it should be.

In deciding whether land is still subject to the burden of the covenant there are three particular points to note:
  • Covenants created before 1/1/1926: Equitable doctrine of notice applies.
  • Covenanted created on or after 1/1/1926 - land unregistered: Void against purchaser for money or money's worth unless registered against the name of the estate owner of the burdened land when created as a D(ii) land charge.
  • Covenanted created on or after 1/1/1926 - registered land: Void against purchaser if not registered as a charge on the charges register of the burdened land.

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