Land law- Pt 2 Test Questions with All
Correct Answers 2026 Updated.
Is a covenant capable of being legal? - Answer Covenants are not capable of being legal
interests in land. They are not listed in s 1(2) LPA1925 and are therefore equitable by nature - s
1(3) LPA 1925
Formalities - Answer As covenants are equitable by nature, the relevant formality is in
writing and signed (s 53(1)LPA 1925). This means that it is possible to create a covenant by
contract. However, it is usual that a covenant will be created by deed. This is because covenants
tend to be created onsale of part land and are included in the transfer
Covenantor - Answer The person who makes the promise and who has the burden of the
covenant
Covenantee - Answer The recipient of the promise and who has the benefit of the covenant
Servient land - Answer (Or burdened land) - the land bound by the covenant owned by the
covenantor
Dominant land - Answer (Or benefited land) - the land with the benefit of the covenant
owned by the covenantee
Annexation - Answer This means that the benefit of the covenant is attached to the land of
the covenantee and the benefit passes automatically to any successor in title of the covenantee
Assignment - Answer An express transfer of the benefit of the covenant to a successor in
title to the covenantee
Positive vs restrictive covenants - Answer A positive covenant requires some effort or
expenditure to perform the obligation. A restrictive covenant requires no such effort or
expense.
It is the substance of the covenant that will define whether or not it is positive, rather than the
wording of the covenant.
Original parties - Answer The original covenantor and the original covenantee are parties to
a contract. This is therefore governed by the principles of contract law and the original
covenantor is bound by privity of contract. This means that the liability of the original
covenantor has the potential to lastforever even after the land has been sold. The covenantor
,may have covenanted on behalf of themselves and their successors in title either expressly
within the relevant document (usually a deed) or, if not made expressly, it can be implied by s
79 LPA 1925, provided that the covenant relates to the land.
The obligation of the original covenantor relates to both positive and restrictive covenants.
Running of the burden at common law - Answer The burden of a covenant (whether positive
or restrictive) cannot pass at common law -Austerberry v Corporation of Oldham (1885) 29 Ch D
750 affirmed in the House of Lords in Rhone v Stephens [1994] 2 AC 310.
The principle is based in contract law, where the common law rule is that only the benefit ofa
contract can be assigned, but never the burden. To enforce a covenant against a successor in
title 'would be to enforce a personal obligation against a person who has not covenanted' per
Lord Templeman in Rhone v Stephens.
Running of the burden in equity - Answer The burden of a restrictive covenant may pass in
equity under the doctrine in Tulk v Moxhay (1848) 2 Ph 774 provided that the following
requirements are satisfied:
(a) the covenant must be negative (restrictive) in substance;
(b) the covenant must, at the time of the creation of the covenant, have been made to benefit
dominant land retained but he covenantee;
(c) the covenant must touch and concern the dominant land;
(d) the covenant must be made with the intent to burden the servient land; and
(e) the owner of the servient land must have notice of the covenant for it to bind them
The covenant must be negative in substance - Answer The rule in Tulk v Moxhay only applies
to restrictive covenants, ie those covenants affecting the mode of using the land.
The covenant must, at the time of the creation of the covenant, have been made to benefit
dominant land retained by the covenantee - Answer There must be identifiable dominant
land owned by the covenantee at the time the covenantis created. As most covenants are
created when a part of land is sold, this means that the seller must retain land.
The covenant must touch and concern the dominant land - Answer The test created in P & A
Swift Investments v Combined English Stores Group plc [1989] AC 632 can be used:
(i) a 'touching and concerning' covenant must benefit only the dominant owner for the time
being, so that, if separated from their land, it ceases to be advantageous to them;
(ii) the covenant must affect the nature, quality, mode of user or value of the land of the
dominant owner; and
(iii) the covenant must not be expressed to be personal (ie must not have been given only to
one specific dominant owner).
, The covenant must be made with the intent to burden the servient land
The intention can either be express or implied - Answer Express intention: This will be set
out in the document creating the covenant
Implied intention: In the absence of express words, the intention can be implied using s 79(1)
LPA 1925:
A covenant relating to any land of a covenantor... Shall, unless a contrary intention is expressed,
be deemed to be made by the covenantor on behalf of himself and his successors in title and
the person's deriving title under him or them.
The owner of the servient land must have notice of the covenant for it to bind them - Answer
How notice is given will depend upon whether the land is registered or unregistered.
Alternative methods of enforcing a positive covenant - Answer Positive covenants cannot run
with the land, either at common law or in equity, and are therefore not enforceable against a
successor in title to the covenantor. There are three devices which have evolved at common law
where positive covenants can be enforced against successors in title of the servient/burdened
land (either directly or indirectly):
- create a lease
- indemnity covenant
- the doctrine of mutual benefit and burdern - Halsall v Brizzell
Create a lease - Answer Instead of selling the land freehold, the landowner can create a
lease. Although this ensures that positive covenants are enforceable, leases are less attractive to
a buyer than the purchase of freehold land. This is because a lease must be created for a fixed
duration (which will eventually come to an end) and not last forever like a freehold estate.
Indemnity covenant - Answer An original covenantor remains bound by their promise as a
consequence of privity of contract. When the servient land is sold only the burdens of
restrictive covenants pass to a successor in title. The original covenantor therefore remains
bound by positive covenants.
Upon the sale of the servient land (the land burdened by the covenant), it is normal
conveyancing practice to require the buyer to enter into an indemnity covenant promising to
observe positive covenants and indemnifying the seller for any loss incurred as a consequence
of any breach. An indemnity covenant is then sought from each subsequent buyer of the
servient land creating a chain of indemnity covenants.
Correct Answers 2026 Updated.
Is a covenant capable of being legal? - Answer Covenants are not capable of being legal
interests in land. They are not listed in s 1(2) LPA1925 and are therefore equitable by nature - s
1(3) LPA 1925
Formalities - Answer As covenants are equitable by nature, the relevant formality is in
writing and signed (s 53(1)LPA 1925). This means that it is possible to create a covenant by
contract. However, it is usual that a covenant will be created by deed. This is because covenants
tend to be created onsale of part land and are included in the transfer
Covenantor - Answer The person who makes the promise and who has the burden of the
covenant
Covenantee - Answer The recipient of the promise and who has the benefit of the covenant
Servient land - Answer (Or burdened land) - the land bound by the covenant owned by the
covenantor
Dominant land - Answer (Or benefited land) - the land with the benefit of the covenant
owned by the covenantee
Annexation - Answer This means that the benefit of the covenant is attached to the land of
the covenantee and the benefit passes automatically to any successor in title of the covenantee
Assignment - Answer An express transfer of the benefit of the covenant to a successor in
title to the covenantee
Positive vs restrictive covenants - Answer A positive covenant requires some effort or
expenditure to perform the obligation. A restrictive covenant requires no such effort or
expense.
It is the substance of the covenant that will define whether or not it is positive, rather than the
wording of the covenant.
Original parties - Answer The original covenantor and the original covenantee are parties to
a contract. This is therefore governed by the principles of contract law and the original
covenantor is bound by privity of contract. This means that the liability of the original
covenantor has the potential to lastforever even after the land has been sold. The covenantor
,may have covenanted on behalf of themselves and their successors in title either expressly
within the relevant document (usually a deed) or, if not made expressly, it can be implied by s
79 LPA 1925, provided that the covenant relates to the land.
The obligation of the original covenantor relates to both positive and restrictive covenants.
Running of the burden at common law - Answer The burden of a covenant (whether positive
or restrictive) cannot pass at common law -Austerberry v Corporation of Oldham (1885) 29 Ch D
750 affirmed in the House of Lords in Rhone v Stephens [1994] 2 AC 310.
The principle is based in contract law, where the common law rule is that only the benefit ofa
contract can be assigned, but never the burden. To enforce a covenant against a successor in
title 'would be to enforce a personal obligation against a person who has not covenanted' per
Lord Templeman in Rhone v Stephens.
Running of the burden in equity - Answer The burden of a restrictive covenant may pass in
equity under the doctrine in Tulk v Moxhay (1848) 2 Ph 774 provided that the following
requirements are satisfied:
(a) the covenant must be negative (restrictive) in substance;
(b) the covenant must, at the time of the creation of the covenant, have been made to benefit
dominant land retained but he covenantee;
(c) the covenant must touch and concern the dominant land;
(d) the covenant must be made with the intent to burden the servient land; and
(e) the owner of the servient land must have notice of the covenant for it to bind them
The covenant must be negative in substance - Answer The rule in Tulk v Moxhay only applies
to restrictive covenants, ie those covenants affecting the mode of using the land.
The covenant must, at the time of the creation of the covenant, have been made to benefit
dominant land retained by the covenantee - Answer There must be identifiable dominant
land owned by the covenantee at the time the covenantis created. As most covenants are
created when a part of land is sold, this means that the seller must retain land.
The covenant must touch and concern the dominant land - Answer The test created in P & A
Swift Investments v Combined English Stores Group plc [1989] AC 632 can be used:
(i) a 'touching and concerning' covenant must benefit only the dominant owner for the time
being, so that, if separated from their land, it ceases to be advantageous to them;
(ii) the covenant must affect the nature, quality, mode of user or value of the land of the
dominant owner; and
(iii) the covenant must not be expressed to be personal (ie must not have been given only to
one specific dominant owner).
, The covenant must be made with the intent to burden the servient land
The intention can either be express or implied - Answer Express intention: This will be set
out in the document creating the covenant
Implied intention: In the absence of express words, the intention can be implied using s 79(1)
LPA 1925:
A covenant relating to any land of a covenantor... Shall, unless a contrary intention is expressed,
be deemed to be made by the covenantor on behalf of himself and his successors in title and
the person's deriving title under him or them.
The owner of the servient land must have notice of the covenant for it to bind them - Answer
How notice is given will depend upon whether the land is registered or unregistered.
Alternative methods of enforcing a positive covenant - Answer Positive covenants cannot run
with the land, either at common law or in equity, and are therefore not enforceable against a
successor in title to the covenantor. There are three devices which have evolved at common law
where positive covenants can be enforced against successors in title of the servient/burdened
land (either directly or indirectly):
- create a lease
- indemnity covenant
- the doctrine of mutual benefit and burdern - Halsall v Brizzell
Create a lease - Answer Instead of selling the land freehold, the landowner can create a
lease. Although this ensures that positive covenants are enforceable, leases are less attractive to
a buyer than the purchase of freehold land. This is because a lease must be created for a fixed
duration (which will eventually come to an end) and not last forever like a freehold estate.
Indemnity covenant - Answer An original covenantor remains bound by their promise as a
consequence of privity of contract. When the servient land is sold only the burdens of
restrictive covenants pass to a successor in title. The original covenantor therefore remains
bound by positive covenants.
Upon the sale of the servient land (the land burdened by the covenant), it is normal
conveyancing practice to require the buyer to enter into an indemnity covenant promising to
observe positive covenants and indemnifying the seller for any loss incurred as a consequence
of any breach. An indemnity covenant is then sought from each subsequent buyer of the
servient land creating a chain of indemnity covenants.
