Freehold Covenants
| Author | Christopher Jessel |
| Pages | 11-20 |
Chapter 2
Freehold Covenants
2.1 PRELIMINARY
A covenant is a form of contract. The law will enforce a promise made as part of a bargain under which there must be consideration (although it may be nominal such as a peppercorn). That is sufficient for many contracts such as those for the sale of goods or for personal services but where land is concerned, and in particular the creation of rights which may last for centuries, more has been required by way of formality. A contract for the sale of land must be in writing and incorporate all the terms agreed.
It has long been the practice of both buyers and sellers to include covenants in the conveyancing process. Buyers have required sellers to give certain covenants for title, for instance declaring that the seller had power to sell and that the land was not subject to rights the seller knew about but had not disclosed. Sellers might impose covenants such as requiring the buyer to erect a fence against retained land. Most of these are intended to be personal to the parties but some might go further, for instance where the land was leasehold or subject to a rentcharge and the seller wished to be ensure protection against any future claims by the landlord or rent owner, so that the buyer should accept responsibility for performance or payment either personally or by any future owner.
12 Positive Covenants and Freehold Land
2.2 TULK v MOXHAY
The rule that restrictive covenants can bind freehold land in the hands of a successor in title to the original covenantor was developed by the courts in the nineteenth century following the leading case of Tulk v Moxhay.
The Square was laid out in the 1670s and included a garden in its centre. The houses and the garden together became owned by two families, the Tulks and the Perrys, and in 1786 this small estate was divided between them. In 1807 the Tulk family share was again split. Some of the houses together with the garden passed to Charles Augustus Tulk
that he, the said Charles Elms, his heirs and assigns, would, from time to time and at all times for ever thereafter, at his and their own charges, keep and maintain the said piece or parcel of ground and square-garden, and the iron railing round the same, in its then present form, and in sufficient and proper repair, as a square-garden and pleasure-garden, and in an open state, uncovered with any buildings, and in neat and ornamental order, and would not take down, or permit or suffer to be taken down or defaced, at any time or times thereafter, the equestrian statue now standing in the centre of the said square-garden, but would continue the same in its then present situation and as it then was; and also that it should be lawful for the inhabitants of Leicester Square, tenants of the said Charles Augustus Tulk and of John Augustus Tulk, Esq., his father, their heirs and assigns, as well as the said Charles Tulk and John Augustus Tulk, their heirs and assigns, on payment of a reasonable rent for the same, to have keys (at their own expense), and the privilege of admission therewith annually, at any time or times, into the said square-garden and pleasure-ground.
De GM & G 300, 42 ER 888.
Charles Elms died in 1822 leaving his property to Harriet Filewood. She died in 1834 leaving it to Robert Barrow and the same year he sold the garden to John Inderwick. The terms of sale included a covenant:
And the said John Inderwick doth hereby, for himself, his heirs, executors, administrators and assigns, covenant, promise and agree with and to the said Robert Barrow, his heirs, executors and administrators, that he, the said John Inderwick, his heirs, executors, administrators or assigns, shall and will at all times hereafter observe, perform and keep all and singular the covenants, conditions and agreements contained in the said recited indenture of release, of the 15th day of July 1808, and which thenceforth ought to be observed, and keep harmless and indemnified the said Robert Barrow, his heirs, executors and administrators, and his and their lands and tenements, goods...
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