Scamell and Gasztowicz on Land Covenants

Description

Scamell and Gasztowicz on Land Covenants, 2nd edition, brings the material up to date, exploring the types of covenants practitioners have to contend with, and seeking to offer practical advice in this complex and far reaching area of law. The second edition includes coverage of positive covenants and planning covenants which no other title on the market currently offers. A covenant can be either positive or negative. It is important to understand the difference between positive and negative covenants as not all covenants are enforceable and different rules on enforceability apply depending on whether the covenant is positive or negative. Dealing with the impact of Covenants on land affects most conveyancing transactions and is also of vital importance to landowners, developers and others. It is a complex and broad area of law for property lawyers to contend with. The volume of case law on this topic is extensive. Scamell and Gasztowicz on Land Covenants, 2nd edition, is divided into three main parts: Part I – Restrictive Covenants; Part II – Positive and Negative Covenants; Part III: Planning Obligations. It also deals with the special position of local authorities in relation to land covenants, and has comprehensive coverage on freeing land from restrictions. Preface Contents Table of Statutes Table of Statutory Instruments Table of Cases Introduction: Covenants generally The doctrine of privity Modifications of the doctrine of privity Covenants relating to land Part I Restrictive covenants 1. Meaning of ‘restrictive covenant’ (including general consideration of requirements for transmissibility) The quality of transmissibility The development of the rules relating to transmissibility The current rules in relation to transmissibility 2. The benefit of the restrictive covenant Categories of potential beneficiaries 3. 1: Original covenantees The identification of original covenantees The Contracts (Rights of Third Parties) Act 1999 4. 2: Covenant beneficiaries Origin of trusts of the benefit of restrictive covenants Relationship between trusts of covenants and building schemes Who, as between the trustee and the beneficiary, should be party to the action to enforce the covenants? 5. 3: Subsequent owners and occupiers of land benefited by the restrictive covenant as competent claimants: overview General rule 6. Subsequent owners and occupiers of benefited land: (a) where there is annexation The effect of annexation The requirements for annexation The land to which annexation takes place Negating pre-existing annexation Negating annexation effected under section 78(1) of the Law of Property Act 1925 Can annexation be effected after the creation of the covenant by the unilateral action of the person entitled to its benefit? 7. Competent claimants: (b) express assignment Assignability of restrictive covenants Express assignability not negatived by qualified annexation The time for making an express assignment Formal requirements for an express assignment Effect of section 62(1) of the Law of Property act 1925 or (pre 1926) section 6 of the Conveyancing Act 1881 Implied assignment After the first assignment, is an unbroken chain of assignments connecting the first assignee with the claimant required? Assignment by operation of law 8. Competent claimants: (c) building schemes Introduction 1 The evolution of building schemes 2 The legal effects of building schemes 3 The facts which must be proved to establish the existence of a building scheme 4 Factors which may negative the existence of a building scheme 5 Requirements for registration of building scheme obligations under the Land Charges Acts, 1925 and 1972 and, in the case of registered land, under the Land Registration Acts 1925–2002 9. The running of the burden of restrictive covenants The nature of the burden of a restrictive covenant The running of the burden of restrictive covenants where the title to the land is unregistered The running of the burden of restrictive covenants where the title to the burdened land is registered Position of squatters who gain title to land Covenants in leases Local land charges 10. Restrictive covenants and public law Introduction I: Public bodies becoming covenantees pursuant to special statutory provisions Public bodies as competent claimants (A) Statutes allowing enforcement by deemed ownership of benefited land (B) Statutes allowing enforcement without introducing the mechanism of deeming provisions Burden of public law covenants registrable as local land charges Failure to register covenants as local land charges II: Public bodies acquiring land burdened by restrictive covenants Powers of compulsory acquisition Holding statutory powers to deal with land Effect on restrictive covenants of the compulsory acquisition of the burdened land (or its acquisition by agreement in circumstances where it could have been compulsorily acquired) Altering the statutory purposes for which land was acquired Extension of immunity of Local Authorities to private individuals and bodies Compensation for injurious affection under section 68 of the lands clauses Consolidation Act 1845 or Section 10 of the compulsory Purchase Act 1965 in respect of non-compliance with restrictive covenants Effect on the covenant of the protected non-compliance III: Relationship between restrictive covenants and planning permission Various restrictions on the use of land 11. The construction of restrictive covenants General principles Specific areas of construction Construction of common phrases 12. Restrictive covenants and competition law General competition law The Competition Act 1998 The Groceries Market Investigation (Controlled Land) Order 2010 13. Remedies for breach of a restrictive covenant Introduction Special remedies dependent upon terms agreed between the parties to the covenant General remedies (1) A declaration that the claimant is entitled to enforce the covenant (2) A final injunction to restrain or to remedy a breach of the covenant (3) An interim (‘interlocutory’) injunction in relation to a legal or equitable right (4) Damages in addition to or in lieu of (ie in substitution for) an injunction Defences to remedies generally or alternatively to the equitable remedy of an injunction (or potentially a declaration) Stay of proceedings under section 84(9) of the Law of Property Act 1925 (5) Damages at common law 14. Freeing the title from unenforceable restrictive covenants Introduction Insurance against enforcement Proceedings for a declaration under section 84(2) of the Law of Property Act 1925 15. Extinguishment, discharge and modification of restrictive covenants The covenant ceasing to be enforceable at law or in equity Express release Extinguishment by operation of law Variation by order of the county court under section 610 of the Housing Act 1985 16. The modification and discharge of restrictive covenants and agreements by the Upper Tribunal (Lands Chamber) pursuant to section 84(1) of the Law of Property Act 1925 Introduction The provisions of section 84(1)–(1C) Contracting out not possible Who may apply Who may oppose What restrictions fall within the scope of the upper Tribunal’s jurisdiction? The Upper Tribunal’s powers 17. The scope of the Upper Tribunal’s powers under section 84(1) of the Law of Property Act 1925 The Upper Tribunal’s powers 18. The four alternative grounds giving rise to the Upper Tribunal’s powers The grounds Related matters 19. The grounds giving rise to the Upper Tribunal’s powers: paragraph (a) Paragraph (a) ‘By reason of changes in the character of the property’ ‘By reason of changes in the character of … the neighbourhood’ ‘By reason of … other circumstances of the case which the upper tribunal may deem material’ 20. Section 84(1) of the Law of Property Act 1925: paragraph (aa) Introduction Question 1: Is the proposed user reasonable (for public or private purposes)? Question 2: Would the continued existence [of the restriction] impede the proposed user? Question 3: Does impeding the proposed user not secure practical benefits to the persons entitled to the benefit of it? Question 4: If the restriction does secure practical benefits to the persons entitled to enforce it, are those practical benefits ‘of substantial value or advantage to them’? Question 5: Is impeding that user … (b) contrary to the public interest? Question 6 (under subsection (1a): If the answer to question 4 is negative (ie the practical benefits to the objector are not of substantial value or advantage) or the answer to question 7 is affirmative (ie the restriction is impeding the proposed user contrary to the public interest), would money be an adequate compensation? 21. Section 84(1) of the Law of Property Act 1925: paragraph (b) 1 ‘Persons of full age and capacity … entitled to the benefit of the restriction’ 2 ‘Whether in respect of estates in fee simple or any lesser estates or interests’ 3 ‘The property to which the benefit of the restriction is annexed’ 4 ‘Have agreed, either expressly or by implication, by their acts or omissions, to the same being discharged or modified’ 5 Can reliance be placed partly on paragraph (b) and partly on paragraph (aa) or (c)? When should paragraph (b) be relied upon? Paragraph (b) and the Tribunal’s discretion 22. Section 84(1) of the Law of Property Act 1925: paragraph (c) Overlap between paragraph (c) and other paragraphs Main differences between paragraph (c) and paragraph (aa) The constituent elements of paragraph (c) 23. The power of the Upper Tribunal to award compensation The Tribunal’s power The persons in whose favour compensation may be awarded The statutory yardstick for assessing compensation The two alternative heads of compensation Orders where compensation is payable 24. Procedure on an application to the Upper Tribunal under section 84(1) of the Law of Property Act 1925 Rules and practice directions Overriding objective Delivery and service of documents Competent applicants under section 84(1) The three primary documents involved in proceedings under section 84(1) Admission of objectors Representatives Statements of case Staying the proceedings for alternative dispute resolution Determination of a preliminary issue Case management Procedural applications Failure to comply with directions Expert evidence Evidence and submissions Withdrawal and consent orders Hearings Decisions Setting aside decisions Appeals and reviews Costs Post-hearing action Part II Positive covenants and negative covenants which are not restrictive covenants 25. Meaning of ‘positive covenants’ and of ‘negative covenants which are not restrictive covenants’ and frequency of use Introduction Meaning of ‘positive covenant’ Meaning of ‘negative covenants which are not restrictive covenants’ Common rules of transmissibility of all such covenants Frequency of use 26. Persons able to claim the benefit of positive covenants: (I) Original covenantees Introduction The three categories of original covenantee 27. Persons able to claim the benefit of positive covenants: (II) Subsequent owners and occupiers of the benefited land Introduction to the common law rules Common law rules for the running of the benefit of a covenant Modification of the common law rules by equity and statute The contracts (Rights of Third Parties) act 1999 Transmission of benefit only 28. The burden of positive covenants Introduction Background to the rule laid down in Austerberry v Oldham Corpn The decision in Austerberry v Oldham Corpn The resulting rule of law and equity Section 79 of the Law of Property Act 1925 Statement of the general rule which applies to the burden of a positive covenant Land Registration Statutory exceptions where the burden of a positive covenant runs with the land Local Land Charges 29. Methods of securing the indirect running of the burden of a positive covenant Introduction (1) Right of re-entry (2) Right of entry (3) Use of the rentcharge (4) Conditions attached to property rights (5) Lease of easements containing covenants (6) Fresh covenants on every change of ownership (7) Long lease followed by enlargement (8) Chain of indemnity covenants (9) The exceptional case of fencing covenants as easements 30. Remedies for breach of positive covenants Introduction Specific performance Damages in addition to or in substitution for specific performance Injunction Common law damages Appointment of a receiver 31. Covenants and commonhold Introduction The advantages of commonhold The nature of commonhold Enforceability of obligations Winding-up of the commonhold association Frequency of commonhold Part III Planning obligations relating to land 32. Planning obligations The nature of planning obligations History Current section 106: planning obligations What planning obligations can cover, differences from conditions imposed on the grant of planning permission, and the use and value of them Requirements of section 106 Mandatory requirements of section 106(9) Planning obligations requiring the transfer of land Severability of terms Entry by local authorities as landowners into section 106 planning obligations Enforceability against any person ‘deriving title’ from the person entering into the planning obligation Registration requirements Interaction between section 106 planning obligations and the law of contract Interaction between section 106 planning obligations and existing restrictive covenants Enforcement of planning obligations Modification and discharge of planning obligations Interpretation of planning obligations Local acts Part IV Reform 33. Reform of the law relating to restrictive covenants: Law Commission proposals Background to the latest proposals The Law Commission’s latest Report Appendices Appendix 1 Section 84 of the Law of Property Act 1925 Law of Property Act 1925 (c 20) Appendix 2 Practice Statement Composition of Tribunals in Relation to Matters that Fall to be Decided by the Lands Chamber of the Upper Tribunal Appendix 3 Practice Statement Lands chamber of the upper tribunal delegation of functions to staff on or after 29 november 2010 Appendix 4 Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010 Part 1 Part 2 Part 3 Part 4 Part 5 Part 6 Part 7 Part 8 Part 9 Part 10 Part 11 Part 12 Appendix 5 Practice Directions Lands chamber of the upper tribunal Appendix 6 Upper Tribunal (Lands Chamber) Forms T379–T382 Form T379 – application under section 84 of the law of property act 1925 to discharge or modify a restrictive covenant Form T380 – form of publicity notice Form T381 – notice of objection to a restrictive covenant application Form T382 – certificate of compliance Appendix 7 Sections 106–106C of the Town and Country Planning Act 1990 The town and country planning act 1990 (c 8) Part III Control over Development Index