Index
| Author | Christopher Jessel |
| Pages | 273-289 |
Index
References are to page numbers.
Alienation
restraints on 24–6
Assignment of benefit
absolute 164
case law
benefit not passing, where 162–3 benefit to land, need for 162 covenant relating to or touching and concerning land 159–62
injury due to disrepair of road 162 land drainage 160
Law of Property Act 1925, and
155–7, 159–62
necessary characteristics 159–60 positive repairing covenants 160,
162
restriction of right to build 158 service charge and services 166–7 squatters 161–2
chose in action 154
chose in possession 154
common law, at 154–5
contract, by way of
Contracts (Rights of Third Parties)
Act 1999 165
generally 163–4
Law of Property Act 1925, s 136
163–4
drafting 225
equitable 154–5, 164
express, prudent to include 168 generally 106, 153, 158, 168 implied 164
Law of Property Act 1925, and
s 56 155–8
s 78 158–63, 168
s 136 163–4, 168
legal 154–5
partial assignment 164, 168
positive covenant, divided benefit 168 restrictive covenant, divided benefit
168
reversion to long lease, in case of 166 roads, maintenance of 167
service charge, right to collect
case law 166, 167
chose in action 165
generally 165–7
management company, assignment to 165
methods of assignment 165 rentcharge, and 166
reservation as rent out of lease, where 166–7
reversion to long lease, in case of
166
roads, maintenance of 167 servient titles, need to amend 165–6 specified person, restriction referring to 165
transfer of undertaking, on 164 services 165–7
third party rights 165
transfer of part of servient land, on
177–8
Beneficiary meaning 1–2
274 Positive Covenants and Freehold Land
Benefit and burden
assignment
benefit, of see Assignment of benefit burden, of see Transfer of burden whether possible 59
burden
conditions for enforcement 62 transfer to third party see Transfer of burden
case law
construction works, duty to carry out
62
development of doctrine 58 enunciation of principle 59–60 establishment of doctrine 57–8 generally 62–3
Thameshead Town v Allotey 60–1 claimant not in occupation, where 68 conditional benefits, judicial analysis
59–60, 63
correlation, need for 61 covenant, need for 61
deed, incorporation in
failure to incorporate 61 generally 57
easement
application of principle to 66 registration of 64–6 enforcement, conditions for 62 equity, whether liability arising in generally 60, 63–6
payment, grant of rights linked to
64
personal nature of equities 64 registration 64–5
third party, transfer of burden to 64 establishment of doctrine, case law as to 57–8
estoppel
behaviour giving rise to 58 proprietary 63–4
freehold land, and
generally 110–12, 153
see also Positive covenant (freehold successors, not binding on) generally 57–60, 68
grant linked to payment 64
implied, where conditional grant 64 generally 61, 64
incorporeal hereditament, invocation of benefit by owner of 153
independent obligations, judicial analysis 59–60
invoking 57
land registration
claimant not in occupation, where
68
effect where right not noted 66 procedure 64–5
law, whether liability arising in 60 leisure complex facilities 62 mining operations, and 59–60 mutual benefit arising 58 permissive waste, and 66–8 positive covenants involved in 63 prescription, easement arising from
64
purpose of principle 57–60
right of way, and 58, 63
right to buy, following exercise of 61 roadways, maintenance of 63 service charge
duty to contribute to 60–1 supportive of 68
see also Service charge Thameshead Town v Allotey 60–1 third party, transfer to 64
transfer of see Transfer of burden voluntary nature of 57
Burden see Benefit and burden
Chancel
repairs to 132–3
Chose in action meaning 154
Chose in possession meaning 154
Common parts meaning 2
Commonhold
articles of association 115 association
alteration in 167
common parts owned by 115–16 enforcement of duties by 119, 122 income from letting out common parts 117
insolvency 167
legal estate, right to acquire 120 limited company, as 116 members 116
registration as proprietor 120 voluntary termination 167
works, power to carry out 119 commonhold community statement
115, 116, 117
conversion to 116
defects in scheme 116
design for 116
disputes, dealing with
arrears of service charge 118 costs of work carried out, recovery of 119
defects of procedures 118–19 enforcement 118
generally 117–120
Law Commission reports 118, 119 proposals to improve procedures
119
statutory authority 118, 119
entry rights of developer, etc 120
fire prevention equipment, provision of
117
for sale signs, erection of 117 forfeiture, prohibition on 119 future expenditure, reserve funds for disputes as to see disputes, dealing with above
provisions as to 117
generally 115–16, 122–3 governing documents 116 government guidance 117
heating services 117
insurance of common parts 117 Law Commission
consultation paper 119, 122–3 dispute resolution, report on 118 leasehold’s conversion to 116 lighting services 117
limited take-up 116, 122
liquidation 120
local law for block or estate 116 maintenance of common parts commonhold community statement
116
covenants, drafting of 117
duties on association and unit-holder
116
enforcement of positive covenants
116
generally 116
government guidance 117 service charge for 117
statutory authority for 116 manager, reconstruction of 192 mortgages on, reluctance to take 116 positive covenants
drafting of 117
enforcement 122
purpose 115
Regulations 119
reinvigorating, consultation paper on
122
reorganisation 120
review of system 122
security for 117
service charge
arrears, dealing with 118 assignment of benefit 167 disputes as to see disputes, dealing with above
generally 116, 167
liability for, on disposal of unit 119 provisions as to 117
unpaid, following insolvency 175 statutory authority for 115
tenure
determinable fee simple, estate as
121
determination of freehold 120 escheat of freehold 121 generally 120–22, 136 legislation 121
registration of freehold 120 termination application, process following 120
transfer of burden 171
276 Positive Covenants and Freehold Land
Commonhold (continued)
types of property comprised in 115–
16
Conditional grant 264–5
precedent 264–5
Contract
common law, enforcement at 154 consideration, need for 11, 154 deed, by way of 154
informal 154
sale of land, for, requirements 11 successor not party to 11 Copyhold
enfranchisement, effect 134
former, availability of remedies 136 obligations, enforcement 133, 134 Covenant
assignment or passing of benefits see
Assignment of benefit
breve de conventione, concept derived from 19
burden of, whether passing on assignment 106
common law courts, concept derived from rule of 19
contract, as form of 11, 153 development of law 19
drafting see Drafting
enforcement 2, 155, 168 enlargement of long lease see under
Enlargement of long lease equitable jurisdiction 20 examples 11
freehold land, affecting 110–12 general rule 2
gross, in, assignment of 158 historical and political background
5–8
identity of enforcer, need to ascertain
168
implied words in 170
injunction, enforcement by 155
Law of Property Act 1925
s 78 158–62
s 79 169–70
s 136 163–4
liability in absence of contract 239–42
licence, as 158
meaning 1
persons bound by 1
running with land, necessary characteristics 159–60
title, for 11
writ of covenant, concept derived from
19 Covenantee meaning 1 Covenantor meaning 1
Damages see under Enforcement Deed of covenant
consent of covenantee 23–4 formalities 23
terms, need to settle 23 Determinable fee
legal estate, as 48
not absolute 48
pre-1926 position 48
Distress
abolition of right of 36, 46 Dominant owner
meaning 2
Drafting
benefit, assignment of 225 clarity, need for 211–12 combination of techniques 212 estate covenant schemes
benefit and burden of easements
213–15
common services, reservation of right to use and maintain 214 condition subsequent, example of
215
easements, types of 213–14 generally 213
implied rights, avoidance of 214 normal scheme, contents, etc 213 positive covenants
developer or manager, by 216 unit holder, by 216 precedents
availability of 213
examples 249–55
restrictive covenants 215
service charge, and 214–15, 216–
17
several units sold at same time, where 214
specific easements, need for 214 estate rentcharge 221
generally 211–12
indemnity clauses 224
leasehold easements
deed on change of proprietor of dominant land with a leasehold right 270–1
generally 223–4
grant of easement appurtenant to freehold unit 266–9 neighbour covenants 212–13, 248 procedural covenants 217
re-entry, right of
emergency, in case of 222 forfeiture on re-entry 222 generally 221–2
notice before 222
use, where 221–2
works, to do 221–2 replacement of developer by manager
226
restriction on register
consent of manager, requiring 219,
257
covenant as to 217 dispositions, types of...
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