Law of Private Covenants
A covenant refers to a contractual agreement in which the Covenanter agrees to carry out a specific action for the sake of the covenantee who is also known as the promise. The law of private covenants provides an important means of asserting eternal control over land in the freehold of ownership of other persons. Regarding land, a covenant refers to an agreement contained in the land ownership document. In this case, the Covenanter promises the covenantee he will either engage or disengage in specified actions regarding the piece of land in question. Such forms of agreements are resourceful in the facilitation of the efficient use of land resources. The covenants provide a way of bringing together different land owners so that they can agree to a common plan of use of their lands (Dixon 2013,p.407).
The covenants also allow effective operation through private legislation that affects the successive generation of owners. Additionally, enforceable covenants enhance the value of land in the market by raising the commercial attraction of particular sites or areas through guaranteeing certain advantages or local amenities or indefinite preservation of characteristics of a desirable neighborhood (Morriss & Meiners 2000,p.95; Wood 2011,p.211).
Types of Covenants
Covenants can either be positive or negative depending on their quality. Positive covenants have different rules from negative covenants. Positive covenants allow the covenanter to perform specific actions on it. For instance, a Covenanter can maintain a boundary fence on the piece of land. Positive covenants require an action or payment (Burn et al. 2009,p.841).
Negative covenants, on the other hand, prohibit certain activities on the covenanter’s land for the benefit of land retained by the covenantee. An excellent example of such a prohibition is the exclusion of the Covenanter from using his land for trade or business or by restriction of the nature or density of any future development of the land. Nothing is required for compliance with a negative covenant (Mcfarlane & Nield 2012, p.980).Contract and propertyThe CEM case compares closely with Smith and Snipes Hall Farm against River Douglas Catchment Board (Anson et al. 2010, p.342; Furmston 2007, p.576).
Austerberry v. Oldham Corporation
In this covenant, it was decided that at common law, the burden of a covenant does not run with the land and still cannot be enforced against successors of the original Covenanter. The common rule today comes with the burden of the inability of the covenants to run with the land even though there are available devices for circumvention of the rule (Kodilinye 2014, p.271).
Freehold covenant comes with a challenge of inability to transfer its benefit to a third party. Also, there is an established rule that the challenge of the freehold covenant cannot be attached to the land as a technique of binding buyers of that particular land. The rule is known as the Austerberry v Oldham Corp and was made after a decision of the Court of Appeal dated 1885, under case …