Q&As

If a covenant within a lease does not affect the land (it concerns a rent rebate) is this automatically a personal covenant that will not bind successors in title?

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Produced in partnership with Chris Bryden of 4 King’s Bench Walk
Published on LexisPSL on 16/03/2018

The following Property Q&A produced in partnership with Chris Bryden of 4 King’s Bench Walk provides comprehensive and up to date legal information covering:

  • If a covenant within a lease does not affect the land (it concerns a rent rebate) is this automatically a personal covenant that will not bind successors in title?

If a covenant within a lease does not affect the land (it concerns a rent rebate) is this automatically a personal covenant that will not bind successors in title?

As a lease is a contract, it can contain various provisions obliging the landlord or the tenant to do something (a positive covenant) or not to do something (a restrictive covenant). Most leases will contain numerous standard covenants (eg for repairs, entry in certain circumstances, the payment of rent, for quiet enjoyment and many others) and, where a lease is silent certain covenants are implied by law. However, as a lease is a contract, in order for a covenant to be enforceable there must either by privity of contract or estate between the parties, or statute must intervene to make a covenant enforceable against a successor in title.

Under the common law, in order for a covenant to be enforceable by or against successors in title, there must be privity of estate (there not being privity of

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