⇒ Since the case of Tulk v Moxhay (1848), covenants have been recognised (in addition to being personal and contractual obligations) as capable of being proprietary (i.e. in rem) too.

• In this case, the covenant was an obligation not to build on Leicester Square which was enforced against the defendant when the defendant was not the original covenantor but a purchaser from him.

⇒ So this case meant a covenant can be enforced against a defendant where that defendant is not the original covenantor, but a subsequent assignee or purchaser of the burdend land.

• So, if the various conditions discussed below are satisfied, a covenant can be enforced not only against the original covenantor, but also against anyone who comes into possession or occupation of the land burdened by the covenant.

⇒ Insofar as the obligation is a proprietary one, and so may lie against the land rather than any one person, it may amount to severe limitation on the uses to which the land might be put and so, in turn, very significantly effect its value. I.e. if a covenant can affect future purchasers of the covenantor's land then the value of that land may be significantly reduced.

⇒ As such, the law requires that very precise criteria be met before the burden can be said to run in-line with the doctrine in Tulk v Moxhay (1848).

⇒ First, it is NOT possible for the burden of a covenant between freeholders to run at law in any circumstance; it can ONLY run at equity.

• In other words, there can be no claim at law against a successor to the original covenantor (Rhone v Stephens (1994)).

⇒ Second, even in equity, only the burden of restrictive covenants is capable of passing. This is an absolute rule.

• Thus, the burden of a positive covenant can NEVER pass to subsequent purchasers of the covenantor's land → only the original covenantor can be liable in respect of a positive covenant.
• Despite some criticism of this rule, there is no doubt it remains the law e.g. Rhone v Stephens (1994); Thamesmead Town v Allotey (2000).

⇒ ALTHOUGH NOTE: with leasehold covenants, both negative and positive covenants can run with the lease in both law and equity → this is why it’s important to know whether you’re dealing with a leasehold or freehold covenants as the rules are different.

⇒ The precise conditions for the passing of the burdens of restrictive covenants are discussed below – there are 5 conditions:

1. The covenant must be restrictive in nature;
2. The covenant must touch and concern the land;
3. The covenant must have been imposed to benefit land of original covenantee;
4. The burden of the restrictive covenant must be intended to run with the land;
5. Registration.

⇒ Determining whether something is a negative/restrictive or positive covenant is always a matter of substance rather than form i.e. it does not matter whether it is phrased as a positive/restrictive covenant, it matters what is required or required not to do.

⇒ For example, in Tulk v Moxhay (1848) the covenant was expressed in terms of the need to keep the land as an open spece (which sounds like a positive covenant), however it was rightly held to be negative in substance because, in reality, it was a covenant not to build.

⇒ Only a covenant relating to the use or value of the land should be capable of passing with a transfer of it → so we are concerned with matters affecting the land itself (i.e. in rem), not the personal preferences or desires of the parties to the covenant.

⇒ Whether a particular covenant touches and concerns land will depend on facts of each case.

⇒ A useful three part test as to when a covenant touches and concerns land was laid down by Lord Oliver in Swift Investments v Combined English Stores (1989):

• Could the covenant impose a burden on any owner of an estate in the land, as opposed to the particular original owner?
• Does the covenant affect the nature, quality, manner of use, or value of the land?
• Is the covenant expressed to be personal so that, regardless of its substance, it is mean to operate only as a promise binding the original covenantor?

⇒ In other words, the burden cannot pass at all unless the covenantee had land at the time the covenant was made and that the land was capable of benefitting from the covenant and the burden was imposed so as to benefit that land (Whitgift homes v Stocks (2001)).

• I.e. the covenant must have been made to benefit land and if there is no benefit or no such land, the covenant is unenforceable other than against the original covenantor.

⇒ In other words, there must be some evidence that the burden was intended to be enforceable against whoever came into possession of the land.

⇒ However, this is not difficult to establish because, in the absence of contrary intention, the burden of a restrictive covenant is deemed to be attached to the land (i.e. intended to run) by virtue of section 79 of the Law of Property Act 1925 (the 'Article 79 Presumption'):

• By operation of section 79 of the Law of Property Act 1925, the burden of a covenant is deemed to be made by the original covenantor on behalf of himself and all future owners of the land.

⇒ However, like any presumption, this may be rebutted: section 79 operates to annex the burden "unless a contrary intention is expressed".

• A contrary intention may be found where there is a clear intention to exclude successors in title of the covenantor's land from the effect of the coveant.
• Of course, as this is matter of construction for the court, the most certain course would be to explicitly exclude the operation of section 79 of the Law of Property Act 1925 in the deed of covenant itself.

⇒ In short, restrictive covenants are equitable interests in another’s land, and in consequence must comply with the rules of registered and unregistered conveyancing relating to such interests.

⇒ Where a person against whom the restrictive covenant is being enforced is a purchaser of a registered title under a properly registered disposition (e.g. a transfer, a lease of 7+ years, or a mortgage), the covenant must have been protected by registration of a notice against the burdened property to be enforceable (i.e. placed on charges register). See the notes on this here.

⇒ However, section 29 of the Land Registration Act 2002 provides that where such an interest is not registered (i.e. where the covenant is not registered on the charges register), it loses its priority and cannot be enforced against the purchaser (i.e. the covenantor who bought the land).

• Although, of course, most restrictive covenants will have been protected by registration of a notice at the time they were created.

⇒ Nevertheless, pursuant to section 28 of the Land Registration Act 2002, even if the interest is unregistered (i.e. even if the covenant is not registered on the charges register), it will still be enforceable against a transferee (i.e. the subsequent owner of the covenantor's land) if:

⇒ Where the person against whom the covenant is enforced is a purchaser of the legal estate for "money or money’s worth:, the covenant must have been registered against the original covenanter as a Class D(ii) land charge. You can see the notes on this here.