The most common types of covenants are restrictive covenants. A restrictive covenant is a promise attached to the land which binds the owner for the time being and forbids him from doing something with the land. An example of a restrictive covenant would be not to build on or develop the land. If the owner developed the land, the original owner or the person with the benefit of the restrictive covenant could can sue for breach of covenant and obtain an injunction to remove any developments and prevent further developments.
The other type of covenants are positive covenant. These are rarer and impose an obligation on the owner of land to actually take action. An example of a positive covenant would be the upkeep of a road. This means the owner of the land will have to spend money in repairing the road. If the road is not maintained, then this will be a breach of the covenant and an injunction could be obtained to repair the road.
The main case that governs the law of property covenants is Tulk v Moxhay (1848). The case decided that restrictive covenants can run with the land meaning future owners of land can be bound by covenants.
The case involved a plot of land in Leicester Square which had a restrictive covenant to keep the garden square ‘uncovered with buildings’ so it could remain a garden. This covenant was included when the original owner sold part of the land. When the land was subsequently sold, the new owner was aware of the covenant but did not think it applied to him as he was not there when it was first agreed.
The court decided in Tulk v Moxhay that the restrictive covenant ran with the land, meaning future owners will be bound by the covenants that are associated with the land. This meant that an injunction was ordered to remove any buildings that had been built on the garden contrary to the covenant.
For a restrictive covenant to run with the land, the court established a number of conditions a restrictive covenant must first satisfy:
- The covenant must concern and benefit the land;
- It must be intended that the original parties wanted the covenant to run with the land;
- The party that has the burden must have had notice of the covenant;
- The party to be burdened must have the same interest in the property as the original person making the promise.