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Freeholders started to look at equitable law because those courts had devised the equitable servitude to address the perceived unfairness of the real covenant.

Equitable servitude was a promise that not only allowed the ‘benefit‘ of the positive covenant to run with the land but also the ‘restrictive burden’, (a promise to do or not to do something respectively). It didn’t fall within the traditional types of negative easements, and neither did it meet the traditional requirements of covenants that ran with the land. What it did do was to allow the enforcement of restrictions on land with the remedy for  non-compliance being an injunction whereby the court ordered the promisor to comply with the promise stated in the equitable servitude. This was usually also preferable to a remedy for damages which a common law real covenant would provide.

Tulk v Moxhay (1832)

Additionally, equity not only bound the original parties to the promise but also that of their successors and could bind future purchasers of the burdened land. This is usually traced back to the decision in the landmark case of Tulk v Moxhay.

The background to this case is that in 1808 the owner of several parcels of land in Leicester Square sold a plot to another party that contained a covenant to keep the Garden Square free of buildings. Therefore not being able to build on the plot of land was the ‘burden’, whilst the ‘benefit’ was that the dominant land would remain as an open space.

The land was sold several times over and was eventually sold to a buyer who felt that he did not have to abide by the covenant as he was not one of the original parties to the contract that created the covenant.

The court however found in favour of the plaintiff and granted an injunction that prevented the new owner from building on the land. Before this case, in common law, the original agreement made by a landlord and tenant at the time they entered into the contract meant that there had to be ‘privity of estate’. So, had the agreement been a contract rather than a covenant, the new owner could have enforced it. So, the court decided that the covenant was enforceable at equity as the plaintiff sought an injunction, not damages. The case stood that whilst privity of estate was not required for the ‘burden’ of a covenant to run at equity, in order for the burden to run it must in itself satisfy certain requirements such as:

  1. It must ‘touch and concern the land’;
  2. The original parties must have intended that the burden run;
  3. The party to be burdened must have had notice of the covenant and;
  4. The party to be burdened must hold or acquire some interest in the property that the original promissor held.

EQUITABLE LEASES

As a result, landlords saw that they could use the equitable system successfully in blocks of flats by creating equitable leases. This would allow successors in title to be both bound and burdened by the positive covenant, allowing it to be imprinted on the estate under the doctrine of ‘privity of estate’.

The covenant would always be enforceable by the current landlord, current tenant and their successors – in other words binding on third parties. This would allow privity of estate to run parallell to the contract that created the covenant and exist independently from it.

Enforcing the equitable servitude was also made easier because there were no privity requirements – the equitable servitude was enforcable by injunction relief with the power of the injunction exceeding that of the common law courts. In equity, the ‘restrictive’ covenant was also recognised as a property right, and not just a contract between covenantor and covantee.

So, landlords kept their freeholds and introduced equitable leases of 99 or 125 years, (with a long lease being defined as over 21 years). This created a new type of tenant, the ‘owner occupier’ because they actually fell between being a freeholder and being renting tenants. The leases were created by deed, binding the signatory to strong legal obligations, (such as the transfer of land), which would be signed, witnessed and sealed.

The deed was translated into the lease in the form of covenants (promises) i.e.the rights and obligations of both parties, but fundamentally allowing the freeholder to collect payment for the repairs and maintenance of the common areas (areas the leaseholds did not specifically own. The leaseholder entered into a series of ‘express covenants’ that were specifically written into the lease and there were a few which obliged freeholders to carry out certain functions. There were also implied covenants which were not specifically written into the lease but implied by common law.

So what did long leaseholders get?

Whilst there was no fundamental distinction in law between a lease and a tenancy, by paying a large amount up front, the long leaseholder got the following:

  1. The ‘right of occupation’ over the years;
  2. The freedom of interference from the landlord;
  3. They paid a lower rent.

Landlords did however have to find a way to differentiate between a true long lease of a flat, where the leaseholder was considered to be the owner (a lease term over 21 years) and a rent-paying lease where the lessee was really a tenant and not an owner. To that end the low rent test was devised where the long lease typically had a low ground rent which was created when a freehold piece of land was sold on a long lease or leases. Regular payments were made to the freeholder (or a superior leaseholder), as dictated by the lease.
These payments would in turn provide an income for the freeholder.

Rent paying tenancies on the other hand had a large weekly or monthly rent.

The annual rent (excluding the service charge) was not to exceed two-thirds of the rateable value of the property but there were still some leases of more than 21 years which had annual rents equal to (or approaching) the rack-rent, where no up-front premium was paid but the rent included not only the full value of the property, but also the land and improvements should it have an immediate open-market rental review.

But who were the winners and losers of this new type of tenancy: freeholders or the long leaseholders? The answers can be read here.

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