Freehold covenants
Freehold covenants are promises between freehold owners about the use of land. The burden of a covenant runs only in equity and only under strict conditions.
What "Freehold covenants" covers
- The benefit of a covenant may pass at common law if it touches and concerns the land, the covenantee held a legal estate, the assignee holds a legal estate, and the benefit was annexed, assigned or through a building scheme.
- The burden does not run at common law (Austerberry v Oldham; Rhone v Stephens) — a successor is not bound at law by a positive covenant.
- The burden of a restrictive (negative) covenant runs in equity under Tulk v Moxhay: the covenant must be negative, touch and concern the land, be intended to run, and the buyer must have notice (registration in modern law).
- Annexation of the benefit in equity may be express, implied, or statutory under LPA 1925 s.78 (Federated Homes).
- A building/development scheme allows mutual enforceability among plot owners (Elliston v Reacher conditions).
- Positive covenants can be indirectly enforced via the doctrine of mutual benefit and burden (Halsall v Brizell), chains of indemnity covenants, or a right of re-entry.
- Restrictive covenants are protected in registered land by a notice; in unregistered land by a Class D(ii) land charge.
Key cases & statutes
The authorities and provisions most likely to matter for this subtopic:
How it's tested in SQE1
SQE1 uses single best answer questions: a short factual scenario, one precise question, and five options of which only one is the best answer on the law applied to the facts. For freehold covenants, expect to be asked what the correct legal position is, what a party may or must do, or which outcome follows — with more than one option looking arguable. Reading the facts carefully and eliminating the near-misses is the skill that earns the mark.
Where candidates lose marks
- Asserting that a positive covenant binds a successor — the burden of positive covenants does not run.
- Forgetting that the burden runs only in equity, so the covenantee needs an equitable route to enforce.
- Ignoring the registration requirement, without which a restrictive covenant may not bind a purchaser.
Learn this subtopic in the course
A video lesson, notes and exam-style practice on freehold covenants.
FAQ
Is freehold covenants tested on SQE1?
Yes — freehold covenants is part of the SQE1 Land Law syllabus (FLK2) and can appear in single best answer questions.
How is freehold covenants examined in SQE1?
SQE1 tests it by application: you're given a realistic scenario and choose the single best answer from five options. The focus is on using the law correctly, not reciting it — knowing the leading authorities (Tulk v Moxhay (1848), Rhone v Stephens [1994]) helps.