The Law Commission has long recommended that the burden of positive covenants – ie where the servient owner is to do something, rather than refrain from doing something – be made to run with the land and thus be enforceable against successors in title to the original covenantor. To date nothing has been done. (see eg Rhone v Stevens [1994] 2 AC 310 at 321).
Covenants Positive & Restrictive – To run or not to run
In general a covenant, or promise, can be enforced only against the person who made it. However, since at least as long ago as the 16th century, it has been recognised that a tenant under an assigned lease is bound to comply with such of their predecessor’s covenants that “touch and concern” the demised property. (Spencer’s Case (1583) 77 ER 72).
In enforcing some freehold covenants, it is recognised that, where a purchaser has notice of a restriction on the use of the land, that purchaser would not be able to enjoy greater rights than those enjoyed by the person from whom their title is derived. The courts, since the old case of Tulk v Moxhay (1848) 2 Phillips 774, 41 ER 1143, well-known to law students, have prescribed the circumstances in which the burden and the benefit of a covenant can be said to run with the land. Notably, there must be a “dominant” tenement, which was intended to benefit from the covenant, the covenant must in fact benefit the land which it was intended to benefit, and the person claiming must have an interest in the land. It is often said that the covenant must “touch and concern” the land (terminology derived from older leasehold law).
Further, the covenant must be negative in substance and restrictive of the owner’s user of land. Rights of pre-emption and covenants not to sell for less than a certain price, though negative, do not restrict the use of land and are thus not within the ambit of what is enforceable under the Tulk v Moxhay equitable jurisdiction (see Scamell and Gasztowicz on Land Covenants 3rd Ed 2023 §1.12).
“Equity does not contradict the common law by enforcing a restrictive covenant against a successor in title of the covenantor but prevents the successor from exercising a right which he never acquired.”
(Rhone v Stephens, page 317).
The above logic of enforcing covenants in equity does not apply to positive covenants, which are largely and for the most part unenforceable against all but the person who gave the covenant.
In Tulk v Moxhay, the covenant was expressed affirmatively: “to keep and maintain” the land “in an open state… uncovered by buildings…”, but in substance it was a negative covenant – not to cover the area with buildings etc.. In Blumenthal v Church Commissioners for England [2005] P&CR 20 a covenant that part of a building should be occupied by the Royal Society of Literature was construed as a negative covenant. (ie not to permit occupation by any other entity) (see also Stevens v Ismail [2016] L&TR 21, concerning a covenant to use and occupy premises solely and exclusively as a self-contained flat”). Where a covenant gives rise to several obligations, the court would have no difficulty in enforcing the aspects which are negative.
Conversely, a covenant not to allow an object to fall into disrepair would be viewed as a positive repairing covenant. The test has been said to be whether the owner of the land must “put their hand into their pocket” (Haywood v Brunswick Benefit Building Society (1881) 8 QBD 403), but clearly a requirement for the expenditure of manual work must be regarded as a positive obligation.
The covenant not to cause or permit anything which “may become a nuisance or annoyance” is a potentially very wide covenant which has been the subject of some limited judicial consideration. It prohibits conduct which would cause a “reasonable person, or ordinary and sensible person, having regard to the ordinary use of the relevant properties, … [to be] annoyed by the activity in question.” (Di Silva v Sharp [2022] EWHC 903 (Ch)). The prohibition is wider than common law nuisance. For example, in some circumstances, unlike the law of nuisance, it can protect a right to a view. In Dennis v Davies [2008] EWHC 2961 the covenant was broken by building in the claimants’ line of sight of the River Thames from Heron Island, a view which was clearly reflected in the value of the properties benefited by the covenant. It may be harder to argue that such a covenant protects more general, less specific, views. If parties intended to prohibit building which obscures a view it would be more straightforward and direct to agree a covenant prohibiting building in a certain place, over a certain height as appropriate.
The unenforceability of positive covenants against successors in title goes some way towards narrowing the otherwise potentially wide ambit of covenants like those against “causing or permitting nuisance and annoyance”. The protection of a view would not (currently) be likely to be construed as compelling the servient owner to trim trees in order to prevent the blocking of a view (if that owner cannot be shown to have planted the trees in the first place). One can imagine a positive covenant to “prevent” nuisance and annoyance.
In Ives v Brown [1919] 2 Ch 314, the way in which a tenant’s business was conducted constituted an annoyance to the dominant owners but the freeholder was not liable because the annoyance arose from the way in which the business was actually carried out by the tenant (and not the defendant owner). The editors of Scammel and Gasztowicz (2023, § 11.133(3)) consider that the covenant ‘not to “permit” anything to be done on the land which may be or come to be a nuisance or annoyance’ is not a restrictive covenant which runs with the land since it does not restrict any user of the land by the servient freeholder, though it must be restrictive of such user insofar as it prevents the servient owners themselves from carrying out the offending activity (Scammel and Gasztowicz at §11.258).
Criticism of the distinction?
The state of the law in the area of positive covenants has been criticised. There are many, including the Law Commission, who have concluded that it would be advantageous for the law to abandon the distinction between positive and restrictive obligations insofar as their treatment as property rights is concerned.
The abolition of such a distinction would remove uncertainty in relation to questions as to whether a covenant was restrictive or positive. The problem appears to be accentuated in relation to the tribunal’s jurisdiction to vary or modify covenants. Section 84 of the Law of Property Act 1925 provides for a jurisdiction to vary or modify “any restriction … as to the user” of land. There is no jurisdiction to modify or vary covenants which do not restrict user of land. In Blackhorse Investment Borough Ltd v the Mayor and Burgesses of the London Borough of Southwark [2024] UKUT 33 (LC)) a covenant which required premises to be kept open as a pub was held not to be susceptible to modification or discharge: “the practical effect of a positive covenant in preventing the use of the land for any other purpose is not a sufficient consideration to confer jurisdiction on the Tribunal to modify or discharge such a covenant.” This was distinguished from the Blumenthal decision referred to above, in which the Court of Appeal held that the tribunal did indeed have jurisdiction in that case under s84. Martin Rodger KC cited Aldous LJ in that case as saying:
In one sense all covenants as to user are restrictive. For example the covenant to paint a house blue is a positive obligation requiring the tenant to paint the house a particular colour and it is also a negative obligation preventing the tenant painting the house any other colour. The fact that positive covenants have a negative effect was recognised by Harman J in the Westminster case in the passage of his judgment set out above. The authorities show that the Lands Tribunal and the Courts have excluded from the jurisdiction of the Lands Tribunal covenants which are positive even though they also contain a restrictive element. No doubt that is because the Lands Tribunal’s jurisdiction is confined to modifying restrictive covenants.
Would a servient successor-owner who painted their house red in that scenario be in breach of a covenant which was enforceable because it had a restrictive element, while a tribunal would not have the jurisdiction to discharge the same covenant because it was positive? It is submitted that there ought to be parity in that regard and the covenant ought to be considered the same for the purposes of discharge and enforcement.
In addition, the enforceability as property rights of positive covenants would enable parties to agree as to the maintenance of boundary features, and a registrable regime could provide certainty in terms of what might be expected of neighbours, potentially quieting neighbour disputes (though the potential extra burden may itself give rise to disputes).
Workarounds Esoteric & Common (& Spurious)
The latest Law Commission report on the subject, LC 327, dated 2011, does not explore at length the intrinsic merits of expanding the scope of enforceable covenants, but instead refers to the existing indirect “workarounds” whereby parties can in any event ensure that positive obligations are enforceable, and recommends the establishment of both positive and negative “Land Obligations” in order to simplify the law in this area and remove the need for such undesirable “workarounds”. The report has been responded to by the government, but it is, for the most part, very much on a “back-burner”.
Some of the workarounds whereby a positive covenant can be enforceable against successors in title have been described as “rather esoteric”. (Emmett and Farrand on Title para 19.017). An example is the use of a right of re-entry annexed to a rentcharge, which is a legal interest pursuant to s1(2)(e) of the Law of Property Act 1925. The method has not been tested in the courts, but a covenantee may reserve a rentcharge which includes a requirement for the owner of the burdened land to comply with a positive covenant. The rentcharge must include a right of re-entry on an event which would constitute a breach of the covenant by the land-owner, were they bound by the covenant. While the covenant itself cannot be enforced against a successor in title, the beneficiary may serve a notice under s146 of the Law of Property Act 1925 in the event of non-compliance. In order to avoid the loss of the land, the servient owner would have to apply for relief from forfeiture which would depend on their remedying the breach and complying with the covenant.
In order for the rentcharge and right of re-entry to be enforceable, the obligation would have to be such as to protect the value of the rentcharge (by preserving or enhancing the value of the servient land), though it could also benefit the dominant property. In order to comply with s2 of the Rentcharges Act 1977 the amount of rent reserved would need to be nominal. The benefit of such a right of entry may run with the dominant land under s78 of the Law of Property Act 1925, but Gasztowicz (2023 §29.51) recommends that, in view of the uncertainty, any such covenants and rights of re-entry ought to be assigned by deed on disposition of the rentcharge, in order to ensure the running of the benefit.
The above method is cumbersome and unattractive not least because of the draconian threat of forfeiture and its possible impact on the mortgageability of the burdened property.
More well-known methods include the “benefit / burden” type covenant which often takes the form of a covenant to pay a sum of money in order to enjoy a benefit.
Covenants can be protected by a chains of indemnities, but this relies on the availability of remedies along the length of what can become a long chain.
Fencing covenants are not enforceable per se, but there is an anomalous species of fencing easement (it has been described as “spurious” (Coaker v Willcocks [1911] 2 KB 124)). The Court of Appeal has, several times, affirmed the validity of an easement whereby the servient owner is obliged to fence their land against animals escaping from the dominant tenement. The easements in question were all held to have arisen other than by express grant (ie they were held to have arisen by prescription or under s62 of the Law of Property Acy 1925). In Churston Golf Club v Haddock [2019] EWC Civ 544 it was held that a professionally drafted fencing covenant could not be enforced as an easement, though the Court of Appeal did not preclude the possibility of the grant of a fencing easement.
Land Obligations – a New Interest
In its 2011 report, the Law Commission, after considering regimes in foreign jurisdictions, such as the USA, Northern Ireland, New Zealand and parts of Australia, where such covenants are enforceable as property rights, proposed the statutory replacement of freehold covenants with “Land Obligations” which could be positive or negative. The obligations would be classed as a new species of legal interest and be registrable. The proposals would sweep away the requirements from the Tulk v Moxhay line of case-law but retain the old requirement that an obligation would “touch and concern” land. They would provide certainty by ensuring that such obligations could only be created by express grant, and not for example under s62 of the Law of Property Act 1925. They would be registrable interests. An obligation to fence would be treated as a Land Obligation and not as an anomalous easement. What would then become of the existing fencing easements said to have been already acquired by prescription and not, as would be necessary to create a Land Obligation, an express grant?
The advantage of the new regime in registered land would be that such interests could be easily discoverable by a purchaser, but would the registrar, on application for registration for such an obligation, need to consider whether the obligation did indeed “touch and concern” the land? Could the arrangement lead to a proliferation of registered obligations which do not in fact “touch and concern” land, but which servient owners are too timid to challenge?
Given the wide scope the new obligations would have for burdening land, the Law Commission recognised the need for an extended tribunal jurisdiction to modify or discharge the proposed land obligations. Section 84 of the Law of Property Act 1925 would need to be overhauled.
The Law Commission rejected the idea, practised in Northern Ireland and New South Wales, of creating an exhaustive list of positive covenants that could be enforced against successors in title. The obligation to be performed must be on the servient owner’s land or on the boundary, and must not be required to be carried out on the dominant owner’s land. The Law Commission recommended enshrining the now somewhat antiquated “touch and concern” requirement into statute, but did not recommend a statutory definition. Resort would be had to case law for this requirement which, it is submitted, would take on considerable importance as a check on the growth of positive covenants. Such obligations would have to relate to the “user” of land, and as for covenants now, would not include covenants against assignment, rights of pre-emption and covenants not to sell for less than a certain price. Accordingly, they should not include an obligation to dispose of land in a particular way or on particular terms.
The Law Commission states that it had in mind obligations to repair a fence, to maintain a shared driveway, to keep trees trimmed below a certain height. However, there is no reason why it could not extend to generally keeping a garden tidy, cleaning windows, mowing the lawn, or, for example, whitewashing a shed.
Wide, general covenants, such as “not to cause or permit nuisance or annoyance” can currently be kept in check by the need, in order to be enforceable, for covenants to be interpreted in a way which does not require expenditure, but would such a “Land Obligation” in future be used to compel weeding of an unruly garden, or could it be capable of the promotion of a particular gardening aesthetic, against the wishes of a servient owner?
The origin of a covenant may be that, in two neighbouring properties, an original owner sold part of their estate and imposed conditions as to the use of the land subject to the disposition. Generations later, the two properties may both still be inhabited by separate owners, but one has a means of controlling the other’s use of their property. Freehold restrictive covenants can potentially be used as a means of oppression. There is often no rational basis, other than the conveyancing history of a particular property, why a particular property ought to be burdened with a covenant while the neighbouring property is not.
Is it right that a servient owner should be compelled to trim trees as a result of a covenant made many years ago? Should parties to a contract be permitted to bind others to do work for the benefit of someone else’s property? Lord Templeman in Rhone v Stephens (p.321) referenced the social injustice that had come about when positive covenants were enforced in leases by privity of estate. It may be thought that an expansion in private property rights will overburden land and carry with it an undesired flood of litigation. Perhaps unsurprisingly, Parliament has not seen fit to grapple with these questions in relation to freehold covenants. The use in practice of rentcharges as described above is somewhat rare, and perhaps the need for such covenants to be enforceable as property rights arises chiefly in the minds of lawyers, rather than other interested parties.
There are already socially useful positive obligations that run with the land. Section 106 of the Town and Country Planning Act 1990 provides for a mechanism whereby positive obligations can be enforced in return for planning consent for development. That is a useful means of helping to ensure that the public benefit from the development of land which may otherwise have adverse effects within communities.
Planning law developed separately from the law of private covenants. The two regimes are quite separate but, from a public policy point of view there is some overlap as both are means by which land use can be controlled. It could be argued that planning law is a more accountable, transparent way of controlling the use of land. In an environment where a vast expansion in development is needed in order to satisfy the housing crisis, some may consider the reform of private covenants as a distraction and that it may be preferable to prioritise the reform of planning law so that development can be harnessed and controlled by accountable bodies.
Whilst every effort has been taken to ensure that the law in this article is correct, it is intended to give a general overview of the law for educational purposes. Readers are respectfully reminded that it is not intended to be a substitute for specific legal advice and should not be relied upon for this purpose. Please also note that this article represents the opinion of the author and does not necessarily reflect the view of any other member of St Philips Chambers.
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