The question concerns with freehold covenants, which are defined as a promise to be made by deed by

one person to another to do more or not to something on their own or adjoining land. Original parties to
the covenant are Titmus (T) or Botham (B), so the covenantor is B and T is covenantee as he owns the
land which to be benefited from the covenants. The main issue here is that whether the Henry (H)
would be able to take any action against Racheal (R) on the covenants, as they both are successors of
title.

So, to solve this we should pass the burden or benefit respectively in both law or equity. Before that we
first have to look as there exist breach which is clear from the facts so if we have to identify who might
be liable for that breach?

As B is the original covenantor so remain liable for the breach of covenants by virtue of s.79(1) LPA 1925
which states that unless the covenant grants that liability of original covenantor cease if he/she sold the
land as addressed in the facts so. Further it is a universal practice that when land is sold or the
covenantor to indemnity covenant from the buyer, so that if the covenantor (B) is sued in breach
committed by successor (R) then R has to repay the B any damage that he has to pay as result of her
acts.

Further as the breach is established now the question is that whether the covenants could be able to
enforce among the successor in title & whether the burden or benefit of the covenant run with Fenner
Field (FF). Benefit of covenant would pass easily at law by virtue of s.56 which demands the covenant to
be mentioned in deed or present at the time of covenant. Further it could also pass by the virtue of s.1
of Contract (right if Third Parties) act 1999 which requires the contract should identify the person by
name, by description or by member of class, as we are not given with the detailed information so if all
these requirements are satisfies then burden would pass, if not then it won’t.

Further the burden of covenant doesn’t pass at law (austerberry), but it could pass in equity if certain
conditions are satisfying (Tulk v Moxhay). However, the first condition is that covenant must be
negative in nature as in Haywood v Brunswich which states covenants which “restrict the use of land”
could only pass but the covenant which requires the spending of money is positive which won’t pass. So,
covenant (a) not to allow structure of FF to disrepair as this requires the covenantor to spend money so
this could be regarded as positive covenants as in Rhone v Stephens where repairing of any structure of
property is regarded as positive so this might not pass, but covenant (b) could pass as it clear restrict the
covenantor not to play other games, except cricket, within specified time period. Similarly covenant (c)
is also negative in nature as it essentially prevents the presentation of awards by a different person as in
Tulk where it was held that to keep an open space was actually restrictive in nature. So here burden of
covenant (b) or (c) could pass only.

Secondly in order to pass the burden the covenant must touches or concerns with the land. That it must
be proprietary in nature rather than personal. In order to be proprietary in nature the condition listed in
Swift v Combined English Stores must satisfies, which that covenant affects the nature quality, value or
mode of occupation of the land. Here covenant (b) is clearly proprietary in nature as it restricts the use
of FF, which is the mode of user. Therefore, this limb also satisfies covenant (b) while covenant (c) might
not satisfies this condition as it don’t belong with land rather it purely concerns with covenantee
personal benefit (Re Gadds Transfer). So, covenant (c) can’t bind to R.
Thirdly, covenant must intend to run with land. this intention could automatically establish by virtue of
s.79 LPA 1925. This a statutory presumption that transfer the burden unless it expressed Finally,
registration and protection of the covenant should be considered. Since both plots are registered the
covenant must be protected by Notice against the burdened title in order to be protected. Otherwise, it
will not be enforceable against a purchaser for value (s.29 Land Registration Act 2002 (LRA 2002) by H,
which R is. Here, it is unclear whether B has registered the covenant so as to protect it. However, the
question states that the covenant formed part of the conveyance. Therefore, it may be arguably
assumed that it was so protected as required. Consequently, only the burden of covenant (b) has likely
passed in equity to R contrary to this. So, covenant (c) also satisfies this requirement.

Now as we have passed the burden in equity so we have to pass it in equity. benefit of covenant can be
pass through annexation as s.78 LPA 1925 presumes that benefit of covenant could be pass until it there
is stated to contrary (Federated Home v Mill Lodges). However, it clear from the facts that registered
land was sold to R so that it could be presume here, further we don’t have detailed facts on this.

So as the burden or benefit bot passes at equity to H or R so if the claim is successfully established then
the court might injunction, that not play matches after 6 pm. If courts wasn’t grant injunction then it
could grant damages.