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Covenants And Easements Notes

Law Notes > Property and Equity 2 Notes

This is an extract of our Covenants And Easements document, which we sell as part of our Property and Equity 2 Notes collection written by the top tier of University Of New South Wales students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Property and Equity 2 Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Concept

Key Cases

Issue

Principle

Ratio

Comments

Must benefit the land

Clem Smith

Easement s in gross?-

Tulk v Moxhay is authority for the proposition that a restrictive covenant may run with the land in equity and be enforced against subsequent purchasers

Far-away Racing circuitThe burden of restrictive covenants only run in equity against a subsequent holder with notice of it when the covenant is entered into for the benefit of some parcel of/interest in land
[one cannot have an easement in gross]
For Torrens land the burden of the covenant should be capable of being identified from the register (Bursill v Berger)Though distance is not determinative (Newton Abbot v Williamson & Tradgold - across the road; Baramon Sales v Goodman Fielder - 11km, evidenced showed that the land would be benefited if there was no flour mill on the servient tenement), land 35km away is not capable of being a dominant tenement

Note - the restrictive covenant must 'touch/concern' the land of the covenantee (Marten v Flight Refuelling) - conducting specified business may (Newton Abbot v Williamson & Treadgold)Note TPA ss6 45 - transactions having the effect of substantially reducing competition are void

This was intended to be a covenant in gross Public authorities can impose restrictions without benefited land (s88D/E - CA) - solves the problem in LCC v AllenA landlord's reversion on a tenancy is sufficient interest in land - hence a landlord can restrain a sublessee from breaching a restrictive covenant on the original lease even though no other land he owns may benefit from the covenant

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Generally covenants must be negative in substance (positive = spend

money, Haywood v Brunswick PBS) but statutory authorities under ss 88D can impose positive covenants (p91)

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Covenants must be intended to run with the land (successors, assigns

etc. - this is the default position under s 70CA unless a contrary intention appears)

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Since covenants are equitable, in old system they can't be enforced against a BFPFVWN

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A covenant can be enforced against a covenantee and all their assigns - but in order for the benefit of a covenant is to pass is through: express annexation of the covenant to the land of the covenantee, express assignment of the benefit of the covenant, the doctrine of a scheme of development

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Torrens - In NSW covenants can be noted on the register (s 88(1); s 88(3) for RPA land) and if they are will be protected by indefeasibility - if they are not they can be defeated by a subsequent registered proprietor

o

This sits strangely with the curtain principle - since someone checking the register will have to confirm whether or not it has been assigned or whether it is the subject of a building scheme

Re Martyn

A common scheme of development can be created through s 88B of the CA (p95)Gotta be on the registerIN order to notify a restrictive covenant - the land to be benefited by the covenant must be found in the register Even for a building scheme - the instrument has to contain the necessary information to enable someone searching the register to become aware of the restriction that is notified

Notable characteristics of RCsMust be negative in substanceMust be intended to run with the land - but s 70ARemains an equitable interest - hence remedies are discretionaryThere must be a dominant and servient tenemnet

Re Louis Reciprocal burdens-

At general law the doctrine of building scheme would apply where a developer sold land, purporting to attach covenants to them despite land in the development not being owned by the developer (hence there being no 'burdened land') In Torrens land, so long as the restriction comes within s 88(1) it will also apply

In this case a number of lots did not have covenants that sufficient in form (which precludes application of the RPA) - but despite this the building scheme does not failIf very few of the lots in a development are not so burdened then the building scheme does not fail? Subsequent purchasers can take the benefit of the doctrine at law? Prior purchasers can take the benefit of the covenant at equity if their land is effectively bound by the reciprocal burden

In light of the Westfield Management decision this case may well go the other way

Covenants and Easements Concept

Key Cases

Principle

Ratio

Dominant and Servient tenement s

Hill v Tupper 'pleasure boats'-

A covenant that stops one from hiring out pleasure boats is only between the grantor and granteeThe reason is that the law "will not allow it" (it being new

It is not competent to create rights unconnected with the use/enjoyment of land and annex them so as to constitute property

Comments

I. Dominant and Servient Tenements

Gas & Fuel Corporation of VIC v Barba - extrinsic evidence

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