Covenants
Covenants are obligations which attach to land. In the case of leases, all the covenants and conditions attached to the land are enforceable between the landlord and tenant. In purchases out of the freehold interest, certain types of covenants are deemed to survive and continue notwithstanding purchase out of the ground rent.
See farm grants or freehold leases. The leasehold rules as to covenants apply. Therefore, the terms and conditions that apply under the free farm grant will be enforceable.
As between the original landlord and tenant, they are bound to the terms of their contract. However, under Deasy’s Act, the Landlord and Tenant (Ireland) Act 1860, both the benefit and burden of these covenants apply to successors in title. This means the successor of the original lessor and the lessee can enforce covenants which concern land and are referenced to the subject matter of the lease. This means that they must relate to the land as such rather than.
Lessor and lessee are liable for breaches occurring during their period of ownership only. Some breaches of another nature may continue.
The common law rule which implied in England until 1995 that the original tenant remained liable under lease in perpetuity did not apply in Ireland since 1860. Once the original lessee assigned with the lessor’s consent and gave notice of the assignment to the lessor he is generally discharged.
The types of covenant and obligations that may be attached to freehold land are fewer than that which may be attached in the case of a lease.
Covenants relating to the ownership of land may, for example, restrict the use of land. Negative covenants which require an omission are much more readily enforceable than positive covenants which require expense and action.
As between the original landowners who enter a covenant regarding the enjoyment of land, the agreement is binding as a contractual matter.
The benefit of a covenant, i.e. the right to enforce it may pass to the successor if it purchases and concerns the land and the successor has the same estate as the original owner. The burden or the obligation to perform maybe enforced against successors of the land in respect of which the covenant is made under equitable principles and in certain circumstances.
The covenant must be restrictive. That is to say it must require an omission rather than an act or expenditure. There must be a clear intention that it was intended to benefit the landowner for whose benefit it is enjoyed.
Being a purchaser for value of the property who does not have notice of the restriction may take free from it. Accordingly, such care should be taken to ensure that the restriction is registered in such a way as to come to the attention of a purchaser.
Special principles apply to so-called building schemes. This is where a multiple-unit development such as a housing estate provides for the restriction or imposition of mutual covenants and conditions intended to benefit them all. Provided certain conditions are applied, restrictions are enforceable.
The conditions are as follows: The person enforcing the covenant and the person against whom it is enforced must derive ownership from a common vendor who has laid out the lands for sale and not subject to conditions intended to benefit them all consistent with the general scheme. The restrictions must benefit the plot and be so intended; Parties must have purchased their plots on the understanding the restrictions imposed on the sale were available to all of them.
Covenants affecting land may be enforced by way of injunction and/or damages for compensation. The general principle of law applicable to the grant of the equitable remedy of injunction may limit the circumstances in which an injunction is available. The amount of compensation granted for breach of covenant would be such as would be paid for its release.
Application may be made to the land tribunal in Northern Ireland for release or modification of a covenant. The tribunal takes account of a number of factors such as the public interest, change in the character of the locality.
The tribunal may modify or extinguish covenants if they unreasonably impede the enjoyment of the land. It may order compensation if this occurs. An order of the land tribunal must be registered in the register of deeds or land tribunal.
The land tribunal may modify covenants both in leases and freehold type. The tribunal will be more reluctant to make an order in respect of leases with less than 21 years to run.