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REQUIREMENT 2: TOUCH & CONCERN THE LAND
Kerridge v Foley
COVENANTEE MUST ACTUALLY OWN LAND AT THE DATE OF CREATION OF THE COVENANT
THE EXCEPTION TO THIS IS “THE BUILDING SCHEME” EXCEPTION
Covenant which merely benefits covenantee personally and not their land CANNOT BIND covenantor’s successor’s in title - even if NOTICE is given
T&C – can the land be reasonably regarded as CAPABLE of being affected by the performance or breach of the covenant – IS LAND TOO LARGE FOR COVENANT TO BENEFIT?
OR
In the case of SUB DIVISION: is the covenant “aimed in general at preserving the amenities and character of the neighbourhood” for the convenience of existing residents and for the benefit of lots yet to be sold?
Re Ballard’s conveyance
If your land is TOO LARGE, the covenant will be held not to touch and concern it, and you can’t enforce it against successors in title to the original covenantor
Where the area you’re alleging is benefited by the covenant is too large to be benefited by covenant in fact we cannot say it benefits each sub divided piece – court cannot do that
And court cannot sever covenant so that it just benefits one lot, like the one directly adjacent to the small lot
Therefore the BURDEN of the covenant will end up NOT running with the land – because the land of the covenantee is just too large to actually enjoy the benefit / be touched and concerned by it
You should say in your instrument this covenant benefits both for 1700 acres AND each and every part that it may get subdivided into
Rogers v Hosegood
Must affect the MODE OR USE of the land or affect the VALUE of the land Rogers – SUCCESSOR IN TITLE TO COVENANTEE
Hosegood – SUCCESSOR IN TITLE TO COVENANTOR
The covenant is too big
It benefitted the whole of the land
And not each and every area for which it that parcel of land later became sub-divided
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Held: it could touch and concern the land in this case because it operated to preserve the amenity of the covenantee’s land
And increased or preserved it’s value
This sort of covenant actually does have capability to benefit each sub-divided lot
Covenants which run with the land – BENEFIT THE LAND OF THE COVENANTEE - must have the following characteristics:
(1) They must be made by a covenantee who has an interest in the land to which they refer – Kerridge v Foley
(2) They must concern or touch the land
A covenant cannot “touch and concern” land in the area of land alleged to be benefited by the covenant is so large that it cannot in fact reasonably be benefited: Re-Ballard’s Conveyance
Basic presumption that a covenant which is entered into to the benefit of a parcel of land benefits the land as a whole and not individual parts into which the whole may later be subdivided: see Ellison v O’Neill
Ellison v O’Neill
If you don’t specify that the covenant benefits EACH LOT the court will construe that it benefits the whole of the land – and the covenant must as a mater of construction be able to benefit THE LAND AS A WHOLE in order for the covenant to TOUCH AND CONCERN THE LAND
Basic presumption that a covenant which is entered into to the benefit of a parcel of land benefits the land AS A WHOLE and not individual parts into which the whole may later be subdivided
HELD: covenant expressed to benefit “THE LAND” did not benefit the three lots into which that land was later subdivided
It is recommended that the covenant should be expressed to benefit the land as a whole and any later lots into which it may subsequently be divided
Owner of Torrens title land
Sub-divided 2 lots
Covenantor – not to erect a building more than 1 storey in height – to protect covenantee’s harbour views
On original covenantee’s death executor further sub-divides land
Held: covenants did not touch and concern the land because covenants did not indicate covenant was to benefit not just original piece of land but each and every part into which it might become sub-divided
Covenants not enforceable against original covenantor
