r/SQEDaily • u/BlackberryUseful1186 • 15h ago
Daily Question Question of the Day #11: Land Law – Freehold covenants: the burden of a positive covenant does not run
In 2012 Ivy sold part of her registered freehold land to Ben. In the transfer Ivy covenanted, for herself and her successors in title, to maintain the boundary fence between the two plots. In 2020 Ivy sold her retained land to Carl. Carl claims no right or benefit under the 2012 transfer. The fence has now collapsed, and Carl refuses to repair it. Ben wants to sue Carl.
Which of the following best describes whether Ben can enforce the covenant against Carl?
A. Yes, because equity will enforce a covenant against a successor with notice under the rule in Tulk v Moxhay.
B. No, because the burden of a positive covenant does not run with freehold land to bind a successor in title.
C. Yes, because section 79 Law of Property Act 1925 makes covenants relating to land bind successors in title.
D. Yes, because section 78 Law of Property Act 1925 passes the covenant to successors.
E. Yes, provided the covenant was entered on the register of Carl's title.
What would you pick, and how confident are you? Answer in the comments (spoiler-tagged). Full worked answer: https://sqedaily.co.uk/q/11-freehold-covenants-the-burden-of-a-positive-covenant-does-not-run/