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Positive Covenants and Freehold Land

Positive Covenants and Freehold Land

Name: Positive Covenants and Freehold Land
Brand: Wildy, Simmonds and Hill Publishing
SKU: 9780854902699
Price: 1430.00 HKD
Availability: InStock
Author: Christopher Jessel
ISBN: 9780854902699

By Christopher Jessel

Wildy, Simmonds and Hill Publishing June 2019

Specifications

ISBN-13: 9780854902699
Publisher: Wildy, Simmonds and Hill Publishing
Publication: June 2019
Format: Hardback
Jurisdiction: U.K. ? Countri(es) for reference only

Details

' … a welcome addition to any property lawyer’s bookshelf for some time to come 'From review in Property Law Journal

' ... it sets out with admirable clarity both why the current rules exist and how they operate in practice' 'From review in Law Society Gazette

Positive covenants are obligations binding the owner of land for the time being which require some form of action or expenditure such as keeping a roof or wall in repair or paying instalments of service charge over many years.

Positive Covenants and Freehold Land concerns the rule of property law that a positive covenant cannot bind successors in title to the original covenantor. It considers the origin of the rule, the legal reasoning behind it, and the historical, social and political context in which it has developed. The book then looks at the various methods to circumvent it by using restrictions on the register of title, estate rentcharges, rights of re-entry, the principle of benefit and burden and the use of long leases as virtual freeholds.

A modern structure designed to overcome the problem is the system of commonhold which is currently under review by the Law Commission. The law of easements, particularly in relation to fencing, and the law of nuisance can have the effect of imposing positive obligations on landowners.

Statutes can also either require owners to take specified steps such as keeping listed buildings in repair or they can authorise a landowner to enter into obligations as under the Town and Country Planning Act s 106. Separate chapters examine the issues to be considered on assignment of the benefit of positive covenants, on the transfer of land which is subject to the burden of them, and on the way that covenants operate in the management of housing and commercial estates.

Reform of the law of positive covenants has been in prospect for over 50 years without any response by Parliament but there is now the possibility of Government support. A chapter is included on issues to be borne in mind in drafting covenants and an examination of the juristic nature of positive covenants and their nature as part of a neighbour relationship. The book also features a number of suggested precedents for the practitioner.

Preface; Table of Cases; Table of Statutes; Table of Statutory Instruments; List of Abbreviations; 1.
THE PROBLEM: 1.1 Preliminary; 1.2 Reasons for the rule; 1.3 Social context; 1.4 Historical and political background; 1.5 Conclusion; 1.6 Arrangement of this book; 2.
FREEHOLD COVENANTS: 2.1 Preliminary; 2.2 Tulk v Moxhay; 2.3 Later cases; 2.4 Rhone v Stephens; 2.5 Conclusion; 3.
RESTRICTIONS ON THE REGISTER: 3.1 Preliminary; 3.2 Expense and delay; 3.3 Restrictions and restraints on alienation; 3.4 Restrictions and trusts; 3.5 Operation of the Land Registration Acts; 3.6 Contractual restrictions; 3.7 Law Commission review; 3.8 Conclusion; 4.
ESTATE RENTCHARGES: 4.1 Preliminary; 4.2 Section 121; 4.3 Law Commission report; 4.4 Old cases; 4.5 Rentcharges Act 1977 and cases; 4.6 Legal charges; 4.7 Conclusion; 5.
RIGHT OF RE-ENTRY: 5.1 Preliminary; 5.2 Shiloh Spinners v Harding; 5.3 Re-entry to do works; 5.4 Private statutory powers of entry; 5.5 Conclusion; 6.
BENEFIT AND BURDEN: 6.1 The pure principle; 6.2 Thamesmead Town v Allotey; 6.3 Later cases; 6.4 Equitable interest and land registration; 6.5 Permissive waste; 6.6 Conclusion; 7.
EASEMENTS AND NUISANCE: 7.1 Preliminary; 7.2 Fencing: custom and easement; 7.3 Fencing: statute; 7.4 Support; 7.5 Rights of way, water and electricity; 7.6 Recreational easements; 7.7 Neighbour relations; 7.8 Conclusion; 8.
LONG LEASES: 8.1 Preliminary; 8.2 History and current use; 8.3 Possession and ownership; 8.4 Covenants and forfeiture; 8.5 Management and service charges; 8.6 Assignment; 8.7 Incorporeal leases; 8.8 Conclusion; 9.
ENLARGEMENT OF LONG TERMS: 9.1 Preliminary; 9.2 Preserved obligations; 9.3 Touch and concern; 9.4 Continuing tenurial relationship; 9.5 Covenants affecting freehold land; 9.6 Conclusion; 10.
COMMONHOLD: 10.1 The commonhold system; 10.2 Maintenance and insurance; 10.3 Service charge and other disputes; 10.4 Commonhold tenure; 10.5 Conclusion; 11.
TENURE AND CUSTOMARY RIGHTS: 11.1 Preliminary; 11.2 Positive obligations by tenure; 11.3 Customary obligations; 11.4 Effect of feoffment; 11.5 Highways and bridges; 11.6 Chancel repairs; 11.7 Embankment and sea and river walls; 11.8 Overriding interests; 11.9 Conclusion; 12.
STATUTORY OBLIGATIONS: 12.1 Preliminary; 12.2 Local authority obligations; 12.3 Statutory duties; 12.4 Environmental liability; 12.5 Highways; 12.6 Statutory powers of entry; 12.7 Leasehold Reform Act schemes; 12.8 Private or local Acts; 12.9 Statutory torts; 12.10 Conclusion; 13.
ASSIGNMENT OF BENEFIT: 13.1 Preliminary; 13.2 Common law and equity; 13.3 Section 56; 13.4 Section 78; 13.5 Section 136; 13.6 Contracts (Rights of Third Parties) Act 1999; 13.7 Assignment of service charge and services; 13.8 Conclusion; 14.
TRANSFER OF BURDEN: 14.1 Preliminary; 14.2 Voluntary transfer of whole; 14.3 Transfer of whole by operation of law; 14.4 Transfer of part of servient land; 15.
ESTATE MANAGEMENT: 15.1 Involving a manager; 15.2 Trustees; 15.3 Companies; 15.4 Insolvency or dissolution of manager; 15.5 Reconstruction of manager; 16.
ENFORCEMENT: 16.1 Preliminary; 16.2 Cases on mandatory injunctions; 16.3 Landlord and tenant; 16.4 Co-op v Argyll; 16.5 Application to freeholds; 16.6 The Shelfer Rules; 16.7 Damages; 16.8 Conclusion; 17.
DRAFTING: 17.1 Preliminary; 17.2 Neighbour covenants; 17.3 Estate covenant schemes; 17.4 Restriction on the register; 17.5 Estate rentcharge; 17.6 Right of re-entry; 17.7 Virtual freeholds; 17.8 Leasehold easements; 17.9 Indemnity clauses; 17.10 Assignment of benefit; 17.11 Variation of the scheme; 17.12 Replacement of developer by manager; 18.
REFORM: 19.
TOWARDS A SOLUTION: 19.1 The rule and its reason; 19.2 Is the rule absolute?; 19.3 Enforceable covenants; 19.4 Relationship without contract; 19.5 Remedies; 19.6 Conclusion; PRECEDENTS; Preliminary; P1 Neighbour covenant by servient owner; P2 Estate covenants; P2.1 Developer’s covenant to do works, pay service charge, etc; P2.2 Manager’s covenants; P2.3 Developer’s covenant to pay service charge to manager; P2.4 Developer’s covenant to pay service charge to manager and transfer common parts following last sale; P2.5 Positive covenant by original buyer of unit to observe regulations; P2.6 Restrictive covenant to support deed of covenant; P2.7 Positive covenant to support deed of covenant; P2.8 Restriction; P2.9 Deed of covenant by first buyer of unit with manager; P2.10 Deed of covenant with restriction on register; P2.11 Short form deed of covenant by new owner; P2.12 Consent to dealing by Manager with benefit of restriction on the register; P3 Forms of restriction; P3.1 Form L – certificate of conveyancer; P3.2 Form L – certificate of manager; P3.3 Form M – Certificate of proprietor of benefited land; P3.4 Form N – consent of manager; P3.5 Form O – Consent or certificate; P3.6 Form NN – consent or certificate; P4 Estate rentcharges; P4.1 Definitions of rentcharge; P4.2 Estate rentcharge on sale of land with forfeiture on re-entry; P4.3 Estate rentcharge of nominal amount supporting covenant to pay service charge; P4.4 Clause in transfer reserving estate rentcharge with express right of re-entry; P4.5 Estate Rentcharge with protection for mortgagee; P5 Right of re-entry; P5.1 On forfeiture or to do works and recover cost; P6 Conditional grant; P6.1 Short form; P6.2 Fuller form; P7 Leasehold easements; P7.1 Grant of easement appurtenant to freehold unit; P7.2 Deed on change of proprietor of dominant land having a leasehold right; Index