⇒ As a covenant is a contract a covenantee may sue a covenantor at law or equity (this reflects privity between the original covenantee and covenantor).

⇒ However, because the benefit and the burdens of certain types of covenant can be passed to subsequent owners of both the original covenantor's and original covenantee's land, a number of different situations must be identified...

⇒ If the original covenantor and original covenantee are still in possession of their respective land, the matter is relatively straightforward: they can sue in law or in equity.

⇒ Both positive and negative covenants are enforceable between the original parties who remain in possession of their land.

⇒ If the original covenantor has left he still remains liable to the original covenantee.

⇒ However, the covenantee will usually just want the covenant to be performed so will usually take action against the person actually in possession of the land i.e. the covenantor had the burdened land and owed an obligation to the covenantee, but as he/she has left that land he can no longer enforce the covenant, so an action against the original covenantor for performance would be pretty useless. Thus, the covenantee will likely just take action against the person who now owns the burdened land.

⇒ Consequently, a remedy against the original covenantor who is no longer in possession of the land is of little practical use unless this is the only person against whom there is a realistic chance of a remedy and where damages are acceptable.

⇒ Even if the original covenantee has parted from the benefitted land he MAY be able to enfore the covenant against whomsoever has the burden of it. However, usually this right will have been expressly assigned to the new owner of the property and such action is unlikely to succeed:

• If the original covenantee (who has parted with the benefitted land) tried to sue the covenantor in law, the damages he would recieve would be nominal (i.e. very small) as they wouldn't really face a loss (because they no longer own the benefitted land).
• If the original covenantee (who has parted with the benefitted land) tried to sue the covenantor in equity, the court will likely use its discretion to refuse an equitable remedy i.e. the court would most likely do nothing.

⇒ A covenantor, even if he never had any land burdened by the covenant, is liable on a covenant at law (but not in equity), because the contractual nature of the obligation isn't dependent on the original covenantor holding any estate in land.

• For example, in Smith and Snipes Hall Farm v River Douglas Catchment Board (1949), the defendant (the covenantor) was liable (at law) for a positive covenant to repair and maintain river banks even though he had no land himself, due to the contractual nature of the promise.
• A covenant is, after all, an in personam contractual promise; breach of which entails liability at law.

⇒ Usually defining who the original covenantee are will be quite simple: it will say on the covenant having signed it.

⇒ However, section 56 of the Law of Property Act 1925 may also operate to extend the range of original covenantees (those who enjoy the benefit), although NOT covenantors (those who bear the burden), beyond those who are actual parties to the deed.

• In other words, section 56 of the Law of Property Act 1925 enables, if the wording of the instrument (i.e. covenant) allows it, someone being part of the covenant despte not being explicity named in the original deed.

⇒ section 56 of the Law of Property Act 1925 may operate to include additional parties as covenantees where:

• The covenant was intended to confer this benefit on the person as a party, and;
• So they must have intended to confer a benefit to the person as a PARTY - the benefit must be made 'with' them, not merely 'for them' (Amsprop Trading v Harris Distribution [1997]).
• The person concerned was in existence and identifiable at the time the covenant was agreed.
• So the beneficial cannot be your unborn son; it must be someone in existence at the time the covenant was agreed.

⇒ Remember:

• Positive covenants, with only a few exceptions, only bind the original parties.
• Negative covenants can bind subsequent parties in equity.

⇒ Some other helpful legal resources on enforcing covenants:

• Hip Consultant
• Fosters Law