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23-Nov-2019 10:33

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In theory a chain of indemnity covenants can continue indefinitely however in practice it will come to an end either on the disappearance of the original covenantor or where the chain is broken (by a transfer taking place that does not incorporate an indemnity covenant). The rule in Halsall v Brizell [1957], also known as the doctrine of mutual benefit and burden, states that a person cannot continue take the benefit of a deed without subscribing to the obligations under it.What this means is that if a deed grants the owner of a property the right to, for example, use a private road but the same deed also contains a covenant to contribute toward the cost of the upkeep of the road then the owner cannot exercise the right to use the road without contributing to its upkeep. The burden of covenants contained in a lease will generally run therefore granting a lease out of the freehold title instead of simply conveying the freehold title is a useful way to ensure the covenants remain enforceable. An estate rentcharge can be imposed, whereby the owner of the property is obliged to contribute an annual sum toward the repair and maintenance of shared facilities.Conversely, a covenant to use the property only as a residential dwelling is actually a restrictive covenant not to use the property for any other purpose than a residential dwelling.It is important to understand the difference between positive and negative covenants as not all covenants are enforceable and different rules on enforceability apply depending on whether the covenant is positive or negative.Restrictive covenants are rules preventing certain things from being done on the land, such as keeping animals or using the property for business purposes.Sometimes a covenant can be worded negatively but be positive or vice versa, for example “not to allow the fence to fall into disrepair” is really a positive obligation to maintain the fence.

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For a covenant to continue to be enforceable after the original parties have parted with the land involved, both the benefit and the burden must “run with the land” at either common law or in equity.

A covenant is just a rule governing what can and cannot or must and must not be done on the land which is affected by (burdened with) the covenant.



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