Freehold covenants in Irish land law

The principle

A covenant is a promise formerly contained in a deed under seal, enforceable between the parties as a contract. A freehold covenant does more: attached to a conveyance of freehold land, it can bind successors in title of the original parties. The covenantor carries the burden and owns the servient land; the covenantee takes the benefit and owns the dominant land.

In Jackson Way Properties Ltd v Smith [2023] IECA 185 IE · Court of Appeal Whelan J described a restrictive covenant as an obligation on the covenantor as servient owner that restricts or controls the use of the servient land in a specified manner for the benefit of other lands in the ownership of the covenantee. Much of the case law is English and persuasive only: freehold covenants were historically uncommon here.

A positive covenant requires the covenantor to act — maintain a fence, repair a roof, contribute to a shared road — and usually costs money to perform. A restrictive covenant requires the covenantor to refrain: not to fell trees, not to build, not to trade there. Before 2009 that distinction decided everything, because equity enforced the burden of restrictive covenants only.

The benefit at common law before 2009

Three conditions. The covenant must touch and concern the covenantee's land rather than confer a personal benefit; land includes incorporeal rights such as easements. In Gaw v CIE [1953] IR 232 IE a covenant to repair a footpath ran with a right of way over the path and was enforceable by the covenantee's successor. The successor must hold a legal estate in the dominant land, and the same legal estate as the covenantee: in Westhoughton UDC v Wigan Coal and Iron Co [1919] 1 Ch 159 Persuasive · England a mining damage covenant given to a freeholder could not be enforced by that covenantee's lessee.

The burden at common law before 2009

The burden does not ordinarily run: Austerberry v Oldham Corporation (1885) 29 Ch D 750 (1885) 29 Ch D 750 Persuasive · England. The original covenantor stays liable on privity of covenant, but at law no action lies against a successor. Three devices work around that.

• Chains of indemnity. The covenantor takes an indemnity from the purchaser on sale, and each purchaser does the same; enforcement is indirect, and one omission breaks the chain.
• Reciprocity. In Halsall v Brizell [1957] Ch 169 Persuasive · England estate owners shared the cost of roads, sewers, paths and a sea wall and one refused to pay; Upjohn J applied the principle that a person cannot take a benefit under a deed without subscribing to its obligations. Rhone v Stephens [1994] 2 AC 310 Persuasive · England confines that to mutual obligations: one party alone bore the duty to repair a shared roof, so the successor was not bound.
• Enlarged interests. The Renewable Leasehold Conversion Act 1849 turned leases for lives renewable for ever into fee farm grants subject to the same covenants, and in Re McNaul's Estate [1902] 1 IR 114 IE · pre-1922 that produced a statutory fee simple still subject to them.

The benefit in equity before 2009

Equity kept touch and concern and added two requirements: the claimant must own the land benefited and show the benefit passed by assignment or annexation. Express assignment must be made at the same time as the conveyance of the dominant land. Annexation attaches the benefit to the land itself and may be express, implied where the circumstances show with reasonable certainty that it was taken for the land's benefit (Marten v Flight Refuelling Ltd [1962] Ch 115 Persuasive · England), or achieved by a building or estate scheme. Elliston v Reacher [1908] 2 Ch 665 Persuasive · England requires a common vendor, plots laid out subject to common restrictions intended to benefit every plot sold, purchases made on that basis, and a defined scheme area.

The burden in equity: the rule in Tulk v Moxhay

Equity contributed the injunction and the rule in Tulk v Moxhay (1848) 41 ER 1143 Persuasive · England, which enforces the burden of a restrictive covenant against the covenantor's successor. The plaintiff sold property subject to a covenant that the garden be kept uncovered by buildings. The land passed to the defendant, who argued he was not a party and began building; the plaintiff obtained an injunction.

Four conditions apply: the covenant must be negative or restrictive in substance rather than merely in wording; it must protect the value of the covenantee's land; the parties must have intended the burden to run; and the defendant must be on notice, the rule not binding a bona fide purchaser for value without notice. Constructive notice counts: a solicitor acts as agent of the client, so their knowledge is imputed. The remedy being equitable, laches, unclean hands and the rule that equity will not act in vain can defeat a claim.

Statutory basis

Section 48: what counts as a freehold covenant

Section 48 of the Land and Conveyancing Law Reform Act 2009 defines dominant land as freehold land with the benefit of a covenant to which other freehold land is subject, and servient land as freehold land subject to such a covenant. Both owners include persons deriving title from or under them, so an adverse possessor under the Statute of Limitations 1957 is caught; a servient owner excludes a tenant for less than five years. Decisively, a freehold covenant is one made on or after 1 December 2009.

Section 49: enforceability

Section 49(1) abolishes the rules of common law and equity, expressly including the rule in Tulk v Moxhay, so far as they relate to the enforceability of a freehold covenant. Because that term carries its section 48 meaning, the abolition reaches only covenants made on or after 1 December 2009.

Section 49(2) makes a freehold covenant imposing an obligation to do or refrain from doing any act enforceable by the dominant owner for the time being, or a former dominant owner for a breach during that ownership; and against the servient owner for the time being, for that owner's breach or one occurring earlier and left unremedied, or a former servient owner likewise. The distinctions between benefit and burden, positive and restrictive, law and equity fall away.

Section 49(3) extends that to a scheme of development, defined in section 48 as land subdivided into parts conveyed in fee simple with an intention to create reciprocity of covenants; those bind and benefit the owners for the time being. Section 49(6) preserves privity of contract, covenants for title under section 80 and the Statute of Limitations 1957.

Section 50: discharge and modification

Section 50(1) is the retrospective provision. A servient owner may apply to court for an order discharging a freehold covenant in whole or in part, or modifying it, whenever it was created, on the ground that continued compliance would constitute an unreasonable interference with the use and enjoyment of the servient land.

Under section 50(2) the court must have regard to the purposes of the covenant and the time since; change in the character of the lands or their neighbourhood; the development plan and planning permissions granted or refused nearby; any practical benefit the covenant secures for the dominant owner; whether a positive obligation has become unduly onerous; and the dominant owner's agreement to discharge. Section 50(3) allows compensation for quantifiable loss and section 50(4) requires the order to be registered.

Key authorities

• Jackson Way Properties Ltd v Smith [2023] IECA 185 IE · Court of Appeal — a restrictive covenant controls use of the servient land for the benefit of dominant land, creating an equitable burden inhering in that land.
• Gaw v CIE [1953] IR 232 IE — a covenant to repair a footpath touched and concerned the dominant land, ran with a right of way and bound the covenantee's successor.
• Westhoughton UDC v Wigan Coal and Iron Co [1919] 1 Ch 159 Persuasive · England — the covenantee's lessee could not enforce a covenant given to the freeholder: the successor must hold the same estate.
• Austerberry v Oldham Corporation (1885) 29 Ch D 750 Persuasive · England — the burden of a freehold covenant does not run with the land at common law.
• Halsall v Brizell [1957] Ch 169 Persuasive · England — reciprocity: an owner taking the benefit of a deed cannot escape its obligations. Confined by Rhone v Stephens [1994] 2 AC 310 Persuasive · England to mutual obligations.
• Tulk v Moxhay (1848) 41 ER 1143 Persuasive · England — equity enforces the burden of a restrictive covenant against a successor with notice; abolished by section 49(1) for post-2009 covenants only.
• Elliston v Reacher [1908] 2 Ch 665 Persuasive · England — the requirements of a building or estate scheme, relaxed in Baxter v Four Oaks Properties Ltd [1965] Ch 816 Persuasive · England.
• Re McNaul's Estate [1902] 1 IR 114 IE · pre-1922 — statutory conversion produced a fee simple carrying the existing covenants: the enlarged interests route.

How it is examined

This topic appears regularly as a problem question on Irish land law papers. The pattern: a vendor sold part of a holding subject to a covenant, the purchaser has since sold on to a developer, and a re-zoning makes it inconvenient. You are asked whether it binds the current owner, what remedy the dominant owner has, and how it might be extinguished.

1. Date it. Before 1 December 2009 the older rules apply; on or after it, sections 48 and 49.
2. Classify it. Positive or restrictive in substance; identify covenantor, covenantee, servient and dominant land.
3. Benefit. Touch and concern, a legal estate in the dominant land, the same legal estate.
4. Burden. Start from Austerberry, then indemnity, reciprocity or enlarged interests, then the four conditions of Tulk v Moxhay.
5. Notice. Take the bona fide purchaser defence seriously, then meet it with constructive and imputed notice where a solicitor advised the purchaser.
6. Remedy and discharge. Injunction subject to the equitable bars, then section 50, applied to the facts.

Two points earn marks. Where a covenant protects trees forming part of the character of the land, discharge is harder to win. And planning permission does not determine property rights: a developer with permission can still be restrained.

Related Land Law notes: Halsall v Brizell · easements · ground rents and tenants’ statutory rights · all free Land Law notes.