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[FREEHOLD COVENANTS]
Definition: A covenant is a promise made in a deed and is enforceable as a contract between the covenantor (promisor) and covenantee (promisee) irrespective of contractual consideration is given. The covenant may be given by one neighbor to another and this is more likely arise when a person sells a part of their land to another and either gives covenants as part of their bargain. Thus, a landowner might agree to sell part of his land to X, but X will covenant as part of the transaction that X will not build more then one house over the land and or will not carry out any trade or business over the land and or some other obligations which seems important to the seller. !onse"uently, the original covenantor must do or refrain from doing which he promised and the original covenantee has the right to sue for performance of the covenant. Kinds-Nature of Covenants: !ovenants between freeholders may be either positive or negative. #ositive covenants re"uire the owner of the burdened land to take some action on their own or ad$oining property% usually in that case it re"uires the e&penditure of money. i.e. to keep one's own property in good e&ternal repair in order to maintain the character of neighborhood. (egative or restrictive covenant re"uired the owner of the burdened land to refrain some activity on his own land i.e. not to trade or business on his property. The contractual nature of the covenant means that the original covenantor is under the burden of the covenant. )e must refrain from doing something on his own land if the covenant is negative or restrictive or hr must carry out the terms of the promise if the covenant is positive. #erformance of this burden is not limited to the original covenantor but may run with the land itself. That is to say any persons who came into the possession of the original covenantor's land may be sub$ect to the burden of the covenant as re"uired by the terms. The original covenantee who has the benefit in the covenant may enforce it as a matter of contract. )e has the right to sure for performance of the covenant and may be awarded damages, an in$unction and degree of specific performance. Any *ccupier or owner of the land may be affected by the covenant, either as to burden or as to benefit. +n short, the covenant has been attached to the land itself. The person claiming the benefit will be the owner for the time being benefited land and the person allegedly sub$ect to the burden will be the owner for the time being of the burdened land. +t is possible to show that benefit of the covenant run to the claimant and the burden has run to the defendant. Enfor e!ent of Covenants in E"uit# and at La$: The history of land law was modified by the law and e"uity. This is one area in which the old system is relevant still today and historically different result and different remedy in the court of law and in the court of e"uity.

, -uing at law. +f a person sues on a covenant at law, he will be claiming that the /efendant is sub$ect to the burden of the covenant at law and should pay damages. +f successful, the claimant has right to get the damages. +n this regard, the court can not refuse the said damages. -uing in 0"uity. the story of the courts of e"uity is that they would always act to mitigate the harshness of the common law. +t is not easier to enforce the covenant in e"uity because the range of the defendant is much greater because the burden of a covenant run with the land in e"uity that is impossible at law. +n e"uity the remedies are in$unction for negative covenant and a decree of specific performance for positive covenants. Enfor e!ent of Covenants %et$een Ori&ina' Covenantor and Ori&ina' Covenantee: A covenant is legally binding contract between the covenantor and the covenantee. As such, the covenantee may sue the covenantor for damages at law for breach of the covenant or e"uitable remedies of in$unction and or specific performance of contract. 1oth *riginal #arties are binding. +f the original covenantor and the original covenantee are still in possession of their respective land, all covenants between them are enforceable and the covenantee may obtain damages, an in$unction and or specific performance against the covenantor as they was under a contract. 2or e&ample, to maintain a boundary fence and prohibiting carrying some business. 1oth #ositive and (egative covenants are enforceable between the original parties. 1oth *riginal #arties are #arted with the land. !ovenantor had no land. The covenantor is liable on a covenant at law even if he never had any land burdened by the covenant. This is because the contractual obligation is not depend on the e&istence of any estate. +n -mith and -nipes )all 2arm 3imited where the defendant was liable for his positive covenants to repaid and maintain the river banks. Enfor e!ent of Covenants a&ainst su essors of t(e Ori&ina' Covenantor:

+n Tulk v 4o&hey where a covenant not to build structures was enforced against the defendant where the defendant was not the original covenantor but a purchaser from him. 1ut in following circumstances, a covenant can be enforced against the original covenantor and or who comes into the possession of the land burdened by the covenant. 2irstly, it is not possible at law to burden of the covenant. There can be no claim at law against a successor to the original covenantor. This is simply not possible at law. 1ut 0"uity is not so restricted as the common law and it is possible for the burden of covenant in e"uity. +n short, if the burden is to run that must be in e"uity. -econdly, the in case of negative covenant, in some circumstances, the covenantor may get chance for getting remedy in law and e"uity but it is not possible for the burden of the positive covenant to be enforced against the successors of the original covenantee and only the original covenantor is bound by the positive covenant. #ositive burden can no pass. 2or e&ample. +f the original covenantor and owner of plot X made a covenant with the owner of plot 5 not to carry on trade (negative) and

6 to build a fence (positive). Then X sold out the plot to 7alal. +n this regard, 7alal could be liable restricting not to trade but not liable to maintain fence. Thus, when a land is sold only restrictive covenant can be enforced against the successors and it only in e"uity.