⇒ Freehold covenants are promises (between the covenantor and covenantee) made by deed to do or not to do certain things on freehold land.

⇒ The covenantor is the landowner making the promise i.e. their land is the burdened land.

⇒ The covenantee is the landowner to whom the promise is made i.e. the person who benefits from the covenant.

• To put this in a slightly different way, the landowner making the promise on behalf of their land is the covenantor (who carries the burden i.e. the covenantee will do something on their land) and the landowner to whom the promise is made is the covenantee (and their land receives the benefit).

⇒ A restrictive covenant is an inherently equitable proprietary rights (i.e. they are inherently equitable rights in rem / proprietary rights) and so can be created simply by signed writing by the conferring party (Law of Property Act 1925, section s53(1)a). If you can't remember what a proprietary right / rights in rem is check out this page.

• Freehold covenants are usually made as part of the sale of land (the covenant usually becomes part of the bargain of the sale).
• However, freehold covenants can also arise from a "standalone" transaction.

⇒ A positive covenant is a promise by the covenantor to the covenantee to do something e.g. to build a fence, to contribute to the maintenance of a shared driveway, or to repair a shared roof.

⇒ A restrictive/negative covenant is a promise by the covenantor to the covenantee to refrain from something (most covenants are restrictive) e.g. an agreement not to erect any buildings or structures on their land.

⇒ Most importantly, covenants are clearly regarded as proprietary interests in land, albeit equitable in nature. Because a covenant is proprietary they have the following characteristics:

• Performance of the covenant on the burdened land (i.e. the land owned by the covenantor) may bind future transferees/purchasers of the land if certain conditions are fulfilled, HOWEVER this is only when the covenant is restrictive i.e. only restrictive covenants can bind transferees of the burdened land.
• The covenantee has the benefit of the covenant and can sue for its performance. The benefit of a covenant may also bind transferees if certain conditions are fulfilled

⇒ The duality of benefit and burden:

• Before any covenant can be enforced, it must be shown that the benefit has passed to the claimant and that the burden has passed to the defendant. This is the requirement of duality.
• In other words, it must be shown separately that the owner of the burdened land and owner of the benefitted land is subject to the covenant and it binds them. Without this duality, there can be no action 'on the covenant'.

⇒ Equity enables the possibility of giving a remedy against a person other than the original covenantor (i.e. transferees/purchasers of the burdened land).

⇒ Equity transformed covenants from being purely contractual (i.e. a purely legal matter) to being proprietary (which enables a remedy, at first, in equity and occasionally at law).

⇒ Suing at law:

• If a person sues at law he will be claiming the defendant is subject to the burden and will, therefore, claim damages. Remedies at law (i.e. damages) are narrower than in equity: for instance, it is not possible, in law, to force the owner of the burdened land to uphold the covenant!

⇒ Suing in equity:

• Not only is it easier to enforce a covenant in equity, but the range of potential defendants (i.e. people the claimant can sue) is much greater because the burden of a covenant may run with the land in equity in a way that is impossible at law. In other words, suing in equity allows you to sue any owner of the burdened land (not just the original covenantor), which is impossible if you sue at law.
• Equitable remedies are also avaialble (e.g. injunction and specific performance): these enable you to force the owner of the burdened land to uphold the covenant.
• Importantly, it also seems that there must be a symmetry abut the running of the benefit and the burden → so if the claimant is suing at law, he must establish that the defendant is subject to the burden at law. Alternatively, if the claimant is suing in equity, he must establish that the burden has passed to the defendant in equity.
• In other words, not only must the benefit and burden of the covenant have actually been passed to each respective party (the claimant and the defendant), but they must have done so along the same route: law or equity.
• If this still does not make sense, read all the later topic notes on covenants, as suing in law/equity and the passage of the burden/benefit is explained in more detail wihin those notes.

⇒ Your first step in answering a problem question on covenants should always be to identify the covenantor and covenantee.

⇒ Some other helpful legal resources on covenants:

• BDSR
• My Lawyer