Enforcement of positive covenants in relation to freehold land

Abstract

The purpose of this introduction is to provide a brief outline of the scope and the progression of the thesis.
Since the latter part of the nineteenth century, it has been a well-established principle of real property law in England and
Wales that the burden of a positive covenant cannot run directly with freehold land at law or in equity. The fact that a positive
covenant cannot run directly with freehold land has for many years been acknowledged to be a major defect of English land law.
In Chapter I, the rules which govern the enforceability of freehold covenants are examined. Further, the chapter identifies
why the Judges in the nineteenth century decided not to permit the burden of a positive covenant to run with freehold land.
Conveyancers use a number of techniques and devices in order to circumvent the aforementioned principle. However, none of them are foolproof. In Chapter II, a number of devices which are used by conveyancers in order to circumvent the aforementioned principle are examined and evaluated.
The difficulties which can arise from the present law's failure to provide a satisfactory means whereby positive
covenants may be made to run with freehold land are identified in Chapter III.
Local authorities possess a number of statutory powers to impose positive covenants on freehold land and to enforce them
against successive owners. In Chapter IV, consideration is afforded to some aspects of their powers in this regard.
The need to reform the present law has long been recognised. However, despite the fact that several Reports have been made and one draft Bill produced reform has still not been achieved. In Chapter V, the major proposals made for reform in the 1960's and 1970's are considered. Further, reasons are advanced to explain why reform of the law of positive covenants has proved to be so difficult to secure.
One of the main consequences of the present law is that the vast majority of flats in England and Wales are held on long
leases. The popular preference is for freehold not leasehold ownership. Several common law countries have comprehensive
"condominium" legislation making full provision for rights and obligations, etc., in regard to freehold flats. The relevant
legislation of New South Wales and Trinidad and Tobago is examined in Chapters VI and VII respectively. One objective of
these chapters is to demonstrate that there are viable alternatives to using leasehold schemes for blocks of flats.
In 1984, the Law Commission published their Report on Positive and Restrictive Covenants. Chapter VIII deals with this
Report and with a number of other relevant recent developments