Covenants affecting Land
In this context, a covenant refers to a promise in a deed relating to the use and enjoyment of land. Typically, the owner of one property promises (covenants) the owner of another property to do or refrain from doing something. The objective is to benefit the land owned by another for whose benefit the covenant is made.
Covenants may be negative or positive. A positive covenant obliges the covenantor to do certain things. It may require the undertaking of work or the expenditure of money. A negative covenant obliges the covenantor not to do, that which is prohibited. A positive covenant may deal with an issue relating to the property. It may, for example, entail an obligation to maintain boundaries or an access way, such as a fence, wall or a right of way.
A negative covenant is a restraint on the use of land. It does not require expenditure. It effectively supplements restrictions under planning law.
Covenants bear certain similarities to easements. They are analogous to easements in the sense that there is commonly land which enjoys the covenant and land which is subject to it. However, there are no requirements for dominant and servient tenements in respect of covenants.
A covenant may secure rights and benefits that are incapable of being an easement. For example, there is no easement for a view. However, a view may be protected by covenants binding an adjoining owner.
Covenants are enforceable between the original parties as a matter of contract law. The law of restrictive covenants has sought to find principles by which the covenants may bind successors to the original covenantor and covenantee, as owners of the land. Until the recent 2009 legislation placing the law on covenants of statutory footing, various legal techniques were used to ensure enforceability of covenant.
A distinction must be drawn between leasehold and freehold title. A lease allows the creation of conditions relating to the land which are binding on the successors to the landlord and tenants. This is provided by the statute under the Landlord and Tenant Ireland Amendment Act 1860, Deasy’s Act.
It makes clear provision for substitution of the original landlord and tenant by their successors. The ongoing landlord and tenant are discharged from the benefit and burden of the and their respective successors assume their position.
In the present context, the focus is on covenants in the context of freehold land. See the separate section on landlord and tenant.
Running with the Land
Positive covenants may “run” with the land, for the benefit of the successors of the owners in whose favour, they were made. The successor must have the same estate or interest in the land, as the original covenantee. He must have an interest in the subject matter of the covenant. The covenant must “touch and concern” the land.
The benefit of a covenant may pass under the so-called “all estates” clause, which is usually implied by law in a deed of sale of land. The Conveyancing 1881 and its successor the Land and Conveyancing Law Reform Act, 2009 provides that that privileges, rights and advantages pertaining to or reputed to pertain to the land pass to the successor in title.
It is necessary that the successor has the same estate in the land as the original covenantee. Therefore, a covenant may not be available to a lessee of the covenantee who is not the covenantee’s successor.
It is a question of interpretation of the covenant as to whether it is intended to continue to apply for the benefit of successors. The successor must have an interest in the land, the subject matter of the covenant. The person who claims the benefit of the covenant must own some property which it protects or enhances. Succession to the covenant must be connected with the land.
Enforcement by Successors
The covenantee may enforce the covenant under equitable principles. The Real Property Act 1845 entitles a person entitled to the benefit of a covenant which is intended to benefit him, notwithstanding that he is not a party to the relevant deed. The covenantee may be a trustee or fiduciary on behalf of others who have the requisite interest and who are intended to be benefitted.
In order to be binding on the successors, the covenant must touch and concern the land and interest to which it relates. It must benefit the land as such, and not merely the owners or occupiers of the land in a personal capacity. The covenant need not affect the covenantee’s land exclusively nor immediately. It is sufficient that it protects it in a broad sense. For example, a covenant to contribute towards repairs would touch and concern the land.
It is not necessary that the covenantor is the owner of the land affected by the covenant.
The burden of a positive covenant does not generally “run” with the land of the covenantor. A covenant may be enforceable against a successor of the original covenantor, provided that it is negative and restrictive, rather than positive. The distinction is justified on the basis that a restrictive covenant is something to which a property is subject when bought. Equity does not compel the successor to perform a positive obligation but prevents him from ignoring the restrictions to which his purchase was subject.
Reciprocal covenants may be enforceable, notwithstanding that they are positive in nature. Where a number of persons undertake the same obligation, the element of mutuality may be sufficient to justify and require that the obligation should run for the benefit of successors. This applies, for example, where two or more owners covenant to contribute a proportion of the cost of a shared private roadway. In this case, the burden and the benefit are mutual and interlinked and it is equitable that the party should have mutual obligations.
The covenants must be interdependent. If they are independent, the principle does not apply. There is support for the view that if a person does not wish to take the benefit of a covenant in these circumstances, he need not have the burden of it enforced against him, even if it is reciprocal in nature.
Historically, positive covenants affecting land were not enforced against successors of the person who made the covenant. However, even prior to the 2009 Act, it was arguable, based on consistency of principle, that a covenant which complies with the requirements for the running of the benefit with the land, which was intended to bind the covenantor’s successors, should be enforceable against the successors to the covenantor, who take that land with notice of it.
On an alternative view, the burden of a covenant does not pass to a successor as owner. The original owner remains liable, notwithstanding that he had sold or otherwise parted with the land. Accordingly, it is necessary to have a so-called chain of indemnities, by which the successor covenants to indemnify the original covenantor against his liability on the covenant (which would remain).
In the case of leases, positive and negative covenants that touch and concern the land, have long since, bound the original landlord and tenant and their respective assignees. This applies to all categories of leases, even the very long leases at a nominal rent, commonly found in urban areas in Ireland. Obligations in such long leases, which touch and concern the land, bind the successors of the original ground landlord and ground tenant.
In a number of cases, statute has provided for enlargement of these long leases into freehold. The statute has preserved some of the relevant covenants in the context of enlargement so that they survive, even when the freehold is acquired.
Mid-Victorian legislation provided for the conversion of very commonly encountered leases for lives, renewable for ever, into fee farm grants. The legislation provided that the covenants in the superseded lease for lives, continued to subsist, notwithstanding the acquisition of the freehold estate.
The Real Property Act 1845 provided that where a person was intended to be the beneficiary of a covenant under a deed, he could sue on and enforce it, notwithstanding that he was not a party to it.
The Landlord and Tenant Law Amendment Ireland Act, 1860 (known as Deasy’s Act) provides a general principle that the terms of a lease are enforceable by and against the landlord and tenant and their respective successors. The outgoing tenant is discharged after he gives notice to the landlord in accordance with the terms of the lease. Consent to an assignment is required where applicable under the terms of the lease.
Deasy’s Act allowed for the creation of leases for ever, a category of fee farm grant. The covenants in them are enforceable, as between the original grantor and grantee and their respective successors under Deasy’s Act.
There are differing views as to whether Deasy’s Act requires that the covenant must “touch and concern” the land. On one view a lease is simply a contract. On another view, Deasy’s Act preserved aspects of the existing law. Deasy’s Act was duplicated by the Conveyancing Acts 1881, which apply to the whole of the United Kingdom including Ireland. This Act confirmed that lease covenants were enforceable against successors, provided that they touched and concerned the land.
Early ground rents legislation allowed for the extension of long leases into freehold interests. It provided that the estate as so enlarged would be subject to the same covenants and provisions, as to use and enjoyment and the same obligations, as they would have applied, had the lease still subsisted.
Ultimately, ground rents legislation was broadened the 1960s and 1970s. The 1978 legislation, which is still in force, provides that upon acquisition of the fee simple, most covenants other than a limited category are extinguished. See separately the section on ground rent interest enlargement.
It is arguable that the Conveyancing Act under the “all estate clause” section 6, carries the benefit of covenants.