Land And Conveyancing Law Reform Act 2009

49.

Enforceability of freehold covenants.

49.— (1) Subject to subsection (6), the rules of common law and equity (including the rule known as the rule in Tulk v. Moxhay) are abolished to the extent that they relate to the enforceability of a freehold covenant.

[CA 1881, ss. 58 and 59]

(2) Subject to subsections (3) to (6), any freehold covenant which imposes in respect of servient land an obligation to do or to refrain from doing any act or thing is enforceable—

( a) by—

(i) the dominant owner for the time being, or

(ii) a person who has ceased to be that owner but only in respect of any breach of covenant occurring during the period when that person was such owner,

( b) against—

(i) the servient owner for the time being in respect of any breach of covenant by that owner or which occurred before and continued unremedied after that person became the servient owner, or

(ii) a person who has ceased to be that owner, but only in respect of a breach of covenant which occurred during the period when that person was such owner.

(3) Where there is a scheme of development subsection (2) applies so as to render covenants which are capable of reciprocally benefiting and burdening the parts of land within the scheme enforceable by and against the owners for the time being of such parts or persons referred to in subsection (2)(a)(ii) and (2)(b)(ii).

(4) Where the servient land has been subdivided any obligations, whether to do or to refrain from doing any act or thing, relating to that land—

( a) are apportioned, as appropriate to the subdivided parts of the land, between those parts,

( b) are enforceable accordingly by or against the persons in whom the subdivided parts are vested,

as if those obligations had originally been entered into separately in respect only of each such part.

(5) Any dispute as to the application of subsection (4) to a particular case may be referred to the court for determination and, on such application, the court may order such apportionment as it thinks fit.

(6) This section—

( a) does not affect—

(i) the enforceability of a covenant under the doctrine of privity of contract or a covenant for title under section 80 , or

(ii) the application to a freehold covenant of the Act of 1957,

( b) takes effect subject to the terms of the covenant or the instrument containing it.