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Week 4 - property law

property law
Course

Foundations of Property Law (LAWS12065)

12 Documents
Students shared 12 documents in this course
Academic year: 2019/2020
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Central Queensland University

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Question 1 - Covenants

Abigail owns Lots 1 and 2. She sells Lot 1 to Boris. In the contract of sale, Boris covenants with Abigail, her assigns and successors in title to Lot 2, on behalf of himself and his successors in title to Lot 1

  1. not to erect any building on Lot 1 exceeding 10 metres in height, and

  2. to obtain a like covenant from any purchaser to whom he may in future transfer his title and estate in Lot 2.

Abigail subsequently sells Lot 2 to Charles, and expressly assigns to Charles the benefit of Boris’ covenant.

2 years later, Charles learns that Boris is proposing to erect a building on Lot 1 which will exceed 10 metres in height.

i. Can C (owner of Lot 2) enforce the covenant against B? ii. Now assume that Abigail has retained Lot 2 and not sold it to Charles. Boris has sold Lot 1 to Diana, and it is Diana who is proposing to build above the height limit on Lot

  1. Assume that when Boris sold Lot 1, he told Diana about the covenant but Diana did not agree to be bound by it. Can Abigail enforce the height restriction covenant against Diana?

Can Charles (owner of Lot 2) enforce the covenant against Borris?

Answer : a covenant is a promise a covenant isn’t an easement. The covenantor is borris and Abigail is the covenantee. The benefited land is Abigail’s land and the burden land is Borris’s. the covenant is restrictive, its restricting borris from building ect. Can Charles enforce the covenant against borris? 3 elements to consider being touch and concern the land, section 13 of the property law act enforces the privity rule by allowing a third party to enforce a freehold covenant, look at rogers v hosegood. It was found in rogers v hosegood that height does touch and concern the land. Element 2 being intended to run with the covenantees land, section 53 1 applies that a covenant created after 1st of December 1975 is a covenant. There is a contract ect so there is intention. Element 3 being covenantee must have a legal estate in the benefited land, Abigail was the owner so it was satisfied, can Charles enforce the covenant? Yes. What position would equity take? Equity would take the position, under section 53 1, its not strictly necessary to consider at equity but the covenant could run where it has been annexed. (always do common law and equity position) all elements are 1) covenant must touch and concern the land 2) covenantee must own land benefited by covenant and 3) must have legal estate in the benefited land. Make sure you state that there is no information or facts that suggest their will be future development and building ect.

Now assume that Abigail has retained Lot 2 and not sold it to Charles. Boris has sold Lot 1 to Diana, and it is Diana who is proposing to build above the height limit on Lot 1. Assume that when Boris sold Lot 1, he told Diana about the covenant but Diana did not agree to be bound by it. Can Abigail enforce the height restriction covenant against Diana?

Answer: is the purchaser bound by the covenant of the burdened lot? Does the burden run ay common law? is diana bound? The original covenantor is bound by the covenant and all subsequent owners are not. There is an exception being rural view development pty ltd v fastfort (2009) the burden of a covenant doesn’t run with the land at law because of the privity of contract rule. Does boris covenant run with the land by selling the land to diana? She wont be bound at common law because there is no chain of covenants, she would need to sighn up like a condition of sale or seek an indemnity. Boriss transferring interest to diana she must be aware or agree to her own separate one or boriss will still be liable. The benefit of the torrens system is that is its registered it becomes indefeasible and you are protected. Burden of a covenant omes back to privity of contract as diana did not agree to become bound by the contract, borris becomes legal liable to abigigail for any breeches of the contract/ covenant occurring after he sells the land, which is why he should have taken a covenant from diana to indemnify him for any loss to him caused by her breach. Diana has not agreed to be bound by the covenant so its not enforced against her at common law. does the burden run in equity? In tulk v moxhay, the requirements are

  1. Covenant must be negative in substance (met here because its restrictive in height)
  2. There must be land with benefit from the covenant (lot 2)
  3. Covenanting parties intent the burden to run with land ie not more personal obligation (apparent from the wording of the obligation)
  4. Equitable remedies must be available (not likely to e any discretionary bars to the equitable remedies)

The burden run at equity? The conclusion is that equity will enforce a restrictive covenant

As She has notice of it, you cant register a restrictive covenant so its unenforceable (registered proprietor isn’t burdened by the notice of an interest) 184 2 a. because its not registered the covenant is unenforceable the LTA s 184 gives a purchaser indefeasible title, subject to limited exceptions in s185. A registered proprietor of a burdened lot is not affected by notice of the existence of an unregistered interest LTA 184 (2) (a)

You must go through the common law interest being the property law act and land title act and the equitable interest.

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Week 4 - property law

Course: Foundations of Property Law (LAWS12065)

12 Documents
Students shared 12 documents in this course

University: Central Queensland University

Was this document helpful?
Question 1 - Covenants
Abigail owns Lots 1 and 2. She sells Lot 1 to Boris. In the contract of sale, Boris covenants
with Abigail, her assigns and successors in title to Lot 2, on behalf of himself and his
successors in title to Lot 1
1. not to erect any building on Lot 1 exceeding 10 metres in height, and
2. to obtain a like covenant from any purchaser to whom he may in future transfer his
title and estate in Lot 2.
Abigail subsequently sells Lot 2 to Charles, and expressly assigns to Charles the benefit of
Boris’ covenant.
2 years later, Charles learns that Boris is proposing to erect a building on Lot 1 which will
exceed 10 metres in height.
i. Can C (owner of Lot 2) enforce the covenant against B?
ii. Now assume that Abigail has retained Lot 2 and not sold it to Charles. Boris has sold
Lot 1 to Diana, and it is Diana who is proposing to build above the height limit on Lot
1. Assume that when Boris sold Lot 1, he told Diana about the covenant but Diana
did not agree to be bound by it. Can Abigail enforce the height restriction
covenant against Diana?
Can Charles (owner of Lot 2) enforce the covenant against Borris?
Answer: a covenant is a promise a covenant isn’t an easement. The covenantor is borris and
Abigail is the covenantee. The benefited land is Abigail’s land and the burden land is
Borris’s. the covenant is restrictive, its restricting borris from building ect. Can Charles
enforce the covenant against borris? 3 elements to consider being touch and concern the
land, section 13 of the property law act enforces the privity rule by allowing a third party to
enforce a freehold covenant, look at rogers v hosegood. It was found in rogers v hosegood
that height does touch and concern the land. Element 2 being intended to run with the
covenantees land, section 53 1 applies that a covenant created after 1st of December 1975
is a covenant. There is a contract ect so there is intention. Element 3 being covenantee must
have a legal estate in the benefited land, Abigail was the owner so it was satisfied, can
Charles enforce the covenant? Yes. What position would equity take? Equity would take the
position, under section 53 1, its not strictly necessary to consider at equity but the covenant
could run where it has been annexed. (always do common law and equity position) all
elements are 1) covenant must touch and concern the land 2) covenantee must own land
benefited by covenant and 3) must have legal estate in the benefited land. Make sure you
state that there is no information or facts that suggest their will be future development and
building ect.

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