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Review Your SQE 1 Practice Records

Examination Timing: 00H02M45S

Richard owns the freehold of two adjoining properties, 22 and 24 Cedar Lane, both of which are served by a shared driveway. He transfers the freehold of 24 Cedar Lane to James, a solicitor, and includes the following covenants in the transfer: (1) for the benefit of 22 Cedar Lane, James will keep 24 Cedar Lane in good repair and repaint it every five years; (2) James will not carry on any trade or business in 24 Cedar Lane; (3) for the benefit of 22 Cedar Lane, James will pay a proportion of the costs of the common private driveway serving the properties; (4) James will provide legal services to Richard free of charge until he ceases to practice as a solicitor. 

The shared driveway remains in Richard's ownership. Sarah has purchased 22 Cedar Lane from Richard, and Tom has purchased 24 Cedar Lane from James. Sarah has approached you for advice as to which of the covenants she can enforce against Tom. 

How would you advise Sarah?

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Tom must observe and perform only the third covenant. The burden of covenants does not pass at common law. The benefit of the first covenant has passed to Sarah in equity due to the use of words of annexation, but the burden does not pass to Tom as the covenant is positive. The burden of the second covenant has passed to Tom under the rule in Tulk v Moxhay, but the benefit has not passed to Sarah as no words of annexation have been used. Words of annexation have been used to pass the benefit of the third covenant to Sarah, and although it is positive in nature and would appear to violate the rule in Tulk v Moxhay, the rule in Halsall v Brizell applies as Tom derives a benefit in the use of the driveway, thus the burden of the covenant passes. The fourth covenant is personal and does not touch and concern the land, therefore it cannot be enforced by Sarah. 

Key Point: The enforceability of covenants depends on whether they touch and concern the land and the rules governing the passing of benefits and burdens. Positive covenants generally do not run with the land at common law, but equitable principles and specific rules, such as those in Halsall v Brizell, may allow certain covenants to be enforced if they provide a direct benefit.

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