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Positive Covenants and Freehold Land

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Table of Contents

Preface Table of Cases Table of Statutes Table of Statutory Instruments List of Abbreviations 1 THE PROBLEM 1.1 Preliminary 1.2 Reasons for the rule 1.3 Social context 1.4 Historical and political background 1.5 Conclusion 1.6 Arrangement of this book 2 FREEHOLD COVENANTS 2.1 Preliminary 2.2 Tulk v Moxhay 2.3 Later cases 2.4 Rhone v Stephens 2.5 Conclusion 3 RESTRICTIONS ON THE REGISTER 3.1 Preliminary 3.2 Expense and delay 3.3 Restrictions and restraints on alienation 3.4 Restrictions and trusts 3.5 Operation of the Land Registration Acts 3.6 Contractual restrictions 3.7 Law Commission review 3.8 Conclusion 4 ESTATE RENTCHARGES 4.1 Preliminary 4.2 Section 121 4.3 Law Commission report 4.4 Old cases 4.5 Rentcharges Act 1977 and cases 4.6 Legal charges 4.7 Conclusion 5 RIGHT OF RE-ENTRY 5.1 Preliminary 5.2 Shiloh Spinners v Harding 5.3 Re-entry to do works 5.4 Private statutory powers of entry 5.5 Conclusion 6 BENEFIT AND BURDEN 6.1 The pure principle 6.2 Thamesmead Town v Allotey 6.3 Later cases 6.4 Equitable interest and land registration 6.5 Permissive waste 6.6 Conclusion 7 EASEMENTS AND NUISANCE 7.1 Preliminary 7.2 Fencing: custom and easement 7.3 Fencing: statute 7.4 Support 7.5 Rights of way, water and electricity 7.6 Recreational easements 7.7 Neighbour relations 7.8 Conclusion 8 LONG LEASES 8.1 Preliminary 8.2 History and current use 8.3 Possession and ownership 8.4 Covenants and forfeiture 8.5 Management and service charges 8.6 Assignment 8.7 Incorporeal leases 8.8 Conclusion 9 ENLARGEMENT OF LONG TERMS 9.1 Preliminary 9.2 Preserved obligations 9.3 Touch and concern 9.4 Continuing tenurial relationship 9.5 Covenants affecting freehold land 9.6 Conclusion 10 COMMONHOLD 10.1 The commonhold system 10.2 Maintenance and insurance 10.3 Service charge and other disputes 10.4 Commonhold tenure 10.5 Conclusion 11 TENURE AND CUSTOMARY RIGHTS 11.1 Preliminary 11.2 Positive obligations by tenure 11.3 Customary obligations 11.4 Effect of feoffment 11.5 Highways and bridges 11.6 Chancel repairs 11.7 Embankment and sea and river walls 11.8 Overriding interests 11.9 Conclusion 12 STATUTORY OBLIGATIONS 12.1 Preliminary 12.2 Local authority obligations 12.3 Statutory duties 12.4 Environmental liability 12.5 Highways 12.6 Statutory powers of entry 12.7 Leasehold Reform Act schemes 12.8 Private or local Acts 12.9 Statutory torts 12.10 Conclusion 13 ASSIGNMENT OF BENEFIT 13.1 Preliminary 13.2 Common law and equity 13.3 Section 56 13.4 Section 78 13.5 Section 136 13.6 Contracts (Rights of Third Parties) Act 1999 13.7 Assignment of service charge and services 13.8 Conclusion 14 TRANSFER OF BURDEN 14.1 Preliminary 14.2 Voluntary transfer of whole 14.3 Transfer of whole by operation of law 14.4 Transfer of part of servient land 15 ESTATE MANAGEMENT 15.1 Involving a manager 15.2 Trustees 15.3 Companies 15.4 Insolvency or dissolution of manager 15.5 Reconstruction of manager 16 ENFORCEMENT 16.1 Preliminary 16.2 Cases on mandatory injunctions 16.3 Landlord and tenant 16.4 Co-op v Argyll 16.5 Application to freeholds 16.6 The Shelfer Rules 16.7 Damages 16.8 Conclusion 17 DRAFTING 17.1 Preliminary 17.2 Neighbour covenants 17.3 Estate covenant schemes 17.4 Restriction on the register 17.5 Estate rentcharge 17.6 Right of re-entry 17.7 Virtual freholds 17.8 Leasehold easements 17.9 Indemnity clauses 17.10 Assignment of benefit 17.11 Variation of the scheme 17.12 Replacement of developer by manager 18 REFORM 19 TOWARDS A SOLUTION 19.1 The rule and its reason 19.2 Is the rule absolute? 19.3 Enforceable covenants 19.4 Relationship without contract 19.5 Remedies 19.6 Conclusion PRECEDENTS Preliminary P1 Neighbour covenant by servient owner P2 Estate covenants P2.1 Developer's covenant to do works, pay service charge, etc P2.2 Manager's covenants P2.3 Developer's covenant to pay service charge to manager P2.4 Developer's covenant to pay service charge to manager and transfer common parts following last sale P2.5 Positive covenant by original buyer of unit to observe regulations P2.6 Restrictive covenant to support deed of covenant P2.7 Positive covenant to support deed of covenant P2.8 Restriction P2.9 Deed of covenant by first buyer of unit with manager P2.10 Deed of covenant with restriction on register P2.11 Short form deed of covenant by new owner P2.12 Consent to dealing by Manager with benefit of restriction on the register P3 Forms of restriction P3.1 Form L - certificate of conveyancer P3.2 Form L - certificate of manager P3.3 Form M - Certificate of proprietor of benefited land P3.4 Form N - consent of manager P3.5 Form O - Consent or certificate P3.6 Form NN - consent or certificate P4 Estate rentcharges P4.1 Definitions of rentcharge P4.2 Estate rentcharge on sale of land with forfeiture on re-entry P4.3 Estate rentcharge of nominal amount supporting covenant to pay service charge P4.4 Clause in transfer reserving estate rentcharge with express right of re-entry P4.5 Estate Rentcharge with protection for mortgagee P5 Right of re-entry P5.1 On forfeiture or to do works and recover cost P6 Conditional grant P6.1 Short form P6.2 Fuller form P7 Leasehold easements P7.1 Grant of easement appurtenant to freehold unit P7.2 Deed on change of proprietor of dominant land having a leasehold right Index

About the Author

Christopher Jessel is a solicitor and was a partner with Farrer & Co of Lincoln's Inn Fields, practising in rural property, constitutional and charity law and was previously Assistant Editor of the Rights of Way Law Review. He has written articles and books on property-related subjects including A Legal History of the English Landscape, Farms and Estates: A Conveyancing Handbook (2nd ed) and Development Land Overage and Clawback (2nd ed).


' ... a welcome addition to any property lawyer's bookshelf for some time to come' 'From review in Property Law Journal

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