Urgent!I'm doing a land law assignment but I'm finding it difficult &confusing wondering if anybody can help?

A's in financial difficulties %26amp; sells off part of his garden to B. In the conveyance B covenants for himself %26amp; his successors in title that he'll build %26amp; maintain a garden wall in between A's %26amp; B's.B also covenants that he'll not build any building on his part above 5m in height.B doesn't in fact build the garden wall but sells the land to C. C now intends to build a substantial private house on it. Because of the height restriction, C’s architect designs the proposed house with basement floor inc. underground car parking. The construction of the house will therefore involve considerable excavation work %26amp; special foundations. Due to the configuration of the land, the proposed house will be within 3m of the conservatory which forms part of A's. A has learnt about C’s plans and is opposed to them. Can A enforce the covenant to 1)build %26amp; maintain a garden wall between the 2 properties %26amp; 2)height restriction? reasons?

Urgent!I'm doing a land law assignment but I'm finding it difficult %26amp;confusing wondering if anybody can help?
It is confusing so don't feel bad about it. This is from my memory, and I don't have my notes here, but I did do ok in it!



The grantee's rights under a covenant are called the “benefit” of the covenant, while the grantor's duties are called the “burden.”

So A has the benefit, and C the burdens.



The rules for the running of the burden and the benefit are different. Here, the benefit/burden is appertenant (attached to the land, not remote), becasue both benefits are for the benefit of A's estate. For the burden to run, there must be intent that the it should run, privity, notice, and it must touch and concern the land. We need not discuss if the benifit runs.



With reguards to the wall:



“Affirmative covenants” call for the covenantor to do some act, such as paying money, supplying goods or services, or performing some other act, either on or off the land owned by the covenantor.



1. There was intent that the burden would runs because B covenanted for himself and his successors.

2. There is privity between A and C because A and B were in privity in the orginal grant and C is B's sucsessor in interest.

3. Notice. I'm pretty sure C has to be on notice....was the deed recorded? Was C on notice? Was the covenant in C's deed? And interesting issue.

4. Here's another interesting issue: Does building the wall touch and concern the land? The rule is that it does, if it is for the benefit of the appertnent estate, otherwise, it's personal. Does the wall help out the occupier of A's land. Yes!



Therefore, I think A can enfore it (but check up on notice).



WIth regards to the height restriction:



“Negative covenants” call for the covenantor to refrain from doing some act.



1. Intent. You say that B covenants, not that B convenanted foe his successors. C will content that there was no INTENT for it to run. However, it will probally be read that that was the intent.



2. Privity: As Above.



3. Notice: As Above.



4. Touch and Concern? Yes! There is NO common law right for air and light, but there can be an express convenant. C might claim that the benefit does not serve A any more, but building so close to the conservatory would hurt A, by blocking his light.



Therefore A can enforce it.



Just my ideas and what I could remember. Good luck.
Reply:Am not sure - ring the planning dept of your local council and ask.

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