⇒ 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.
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⇒ 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:
⇒ 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.
⇒ 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.
⇒ section 56 of the Law of Property Act 1925 may operate to include additional parties as covenantees where:
⇒ Remember:
⇒ Some other helpful legal resources on enforcing covenants:
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