Easements

Introduction

A **freehold covenant** is a promise made by deed between the owner of one piece of freehold land and the owner of another, by which the **covenantor** promises either to do something (a **positive covenant**) or not to do something (a **restrictive covenant**) in relation to their land. Covenants are used to regulate the use of land — for example, not to build above a certain height, not to use land for business, or to contribute to the upkeep of a shared driveway. The dominant legal question for SQE1 is whether the **benefit** and **burden** of a covenant continue to bind and benefit **successors in title** after the original parties have sold their respective land.

Assessment focus

Freehold covenants are tested on the rules for **passing the benefit and burden between successors in title**. The golden rule is: the burden of a **positive** covenant does NOT run with the land at common law or in equity. Only the burden of a **restrictive** covenant can run in equity, under the rule in **Tulk v Moxhay**. The **benefit** may run either at common law or in equity. Exam scenarios typically ask whether a successor can enforce or be bound by a covenant given in a previous transfer. The SQE1 FLK1 assessment uses single best answer questions set in realistic client scenarios; you must **apply** the rules, not merely recall them.

Study tips

1) Tackle the **burden first** — it is the harder test. If the covenant is **positive**, the burden cannot pass (Austerberry; Rhone v Stephens) and you move to indirect methods. 2) If the covenant is **restrictive**, apply the **four Tulk v Moxhay requirements** systematically: negative in substance; dominant land owned at the date of the covenant; intention (s.79 LPA 1925); notice. 3) For the **benefit**, distinguish the common-law route (P & A Swift) from the three equity routes — **annexation, assignment, building scheme**. 4) Remember **Federated Homes**: s.78 LPA 1925 annexes the benefit automatically unless excluded (Roake v Chadha) and the benefited land must be identifiable (Crest Nicholson). 5) Learn the **indirect methods** for positive obligations: Halsall v Brizell, chain of indemnity covenants, right of re-entry, long lease.