Subscriber-only episode

The burden of a freehold covenant cannot run with the land at common law, but various legal mechanisms exist to circumvent this limitation. Equity stepped in through the case of Tulk v Moxhay to allow restrictive covenants to bind subsequent landowners, provided specific conditions are met.
• Common law provides two main ways to circumvent the non-running burden rule: the mutual benefit and burden rule from Halsall v Brizell and the chain of covenants mechanism
• For the burden to run in equity, the covenant must be negative (restrictive), must accommodate the dominant land, and the assignee must have acquired the land subject to the burden
• Even covenants written negatively but requiring positive action (like "not letting a fence fall into disrepair") are classified as positive covenants
• In unregistered land, covenants must be registered as D2 land charges; in registered land, notice must be entered in the servient tenement's register
• Failure to properly register a covenant means it won't bind subsequent purchasers for value
• Available remedies include damages at common law, injunctive relief for restrictive covenants in equity, and specific performance for positive covenants
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