Covenant - Definition - Law Dictionary Home Dictionary Definition covenant

Definition :

Covenant [fr. Covenant, Fr.], any agreement, convention, or promise of two or more parties, by deed in writing, signed, sealed, and delivered, by which either of the parties pledges himself to the other that something is either done or shall be done, or stiuplates for the truth of certain facts. He who thus promises is called the covenantor; and he to whom it is made the covenantee. A covenant being part of a deed is subject to the general rules for the construction of such instruents; as, first, to be always taken most strongly against the covenanter and most in favour of the covenantee; secondly, to be taken according to the intent of the parties; thirdly, to be construed ut res magis valeat quam pereat; fourthy, when no time is limited for its performance, that it be performed in a reasonable time.

Covenants are personal obligations; formerly the did not bind theheirs of the covenanter unless the heirs were named and inthat case only to the extent of the lands descended, but if made after 31st december, 1881, the real estate became bound as well as the personal estate [s. 58, (English) C. Act, 1881, reproduced and extended by the (English) L.P.Act, 1925, s. 80 (1)], descent to heir being abolished at the same time by the (English) A.E. Act, 1925, s. 45.

The (English) R.P. Act,1945, s. 5, enabled persons in existence at its date (Kelsey v. Dodd, 52 LJ Ch 34) who were not parties to a deed to take the benefit of any interest, right or covenant respecting land, and this was extended by s. 56 of the (English) L.P.Act, 1925, to any property. It should be observed that this enactment relates to interests or covenants of which the benefit would otherwise pass to such persons and refers to those covenants only which run with the land (see below).

The benefits of covenants which come within the category of choses in action may be assigned, see Law of Properties Act, 1925, and ASSIGNMENT.

A deed addressed to all the world, some times called a deed poll, was not within the rule that only parties to the deed could take advantage of it, Co. Litt, 26 a, 231.

Covenants running with the land are express or implied covenants which touch and concernthe land and do not create an active personal obligation in connection with the land. Implied covenants relate to covenants implied in the words or nature of the grant. The (English) Real Property Act, 1845 (8 & 9 Vict. c. 106), abolished the implications in words such as 'dedi,' concessi; but certain covenants (see infra) are still implied in technical expressions or arise out of the nature of the transaction. In a conveyance by deed of real or leasehold property certain qualified covenants for title, quiet enjoyment and further assurance are implied if the person conveying is expressed to convey, such as 'beneficial owner,' 'trustee,' 'Settlor,' 'mortgagee'; see s 76, and the 2nd sched. Of the (English) L.P. Act, 1925, as to covenants implied in a conveyance (not a mortgage) for value of land subject to a rent charge or an assignment for value of a lease similarly subject, see s. 77; but the s. does not refer to thedemise or letting of land on a lease for rent.

For covenants implied as between lessor and lessee, see Woodfall's Landlord and Tenant, and for covenats implied in perpetuity leases converted into long terms of 2,000 years by the (English) Law of Property Act, 1922, s. 145, see the 15th Sched. To that Act.

The benefit to the covenantee of a covenant running with the land now ensures to his successors in title and the persons deriving title undr him or them, s. 78, (English) L.P. Act, 1925. The burden relating to the land of the covenanter now falls onhis successor in title ad the persons deriving title undr him or them, s. 79, ibid. It is no longer necessary that heirs, executors, administrators and assigns should be referred to in the framing of covenants.

Covenants by a person with himself and another have been validated whether made before or after the (English) L.P. Act, 1925, by s. 82, and see (English) Settled Land Act, 1925, s. 68, in regard to leases by a tenant for life as estate owner with himself as tenant for life inequity.

Restrictive covenants bind all persons (including owners and occupiers for the time being, see s. 79 (3), (English) L.P. Act, 1925) who take with notice of the restriction under the rule in Tulk v. Moxhay, 2 Ph 774, and these covenants if made after 1925 must be registered as a land charge, see (English) L.C. Act, 1925, s. 10, Class C. As to the discharge or modification of Restrictive Covenants, see s. 84 of the L.P. Act, 1925. See also APPORTIONMENT; RUN WITH THE LAND.

No particular technical words are requisite to create a covenant, for any words or form of expression which import an agreement will suffice [Re De Ros' Trust, (1885) 31 Ch D 88]. A covenant to do a thing which upon the face of it appears to be prejudicial to the public interest, or othrwise contrary to law, is absolutely void, as is an impossible covenant, if the impossibility existed at thetime of making it.

The time within which an action must be brought for damages for breach of a covenant is twenty years. [(English) Civil Procedure Act, 1833 (3 & 4 Wm. 4, c. 42), s. 3]

A covenantis either expressor implied--it subsists either in fact or inlaw. An express covenant,or one in fact, is expressed in words; an implied covenant,or one in law, is that which thelaw implies though not expressed inwords. Express covenants are taken more strictly than implied. As to what covenants shall be construed to be precedent or not, it has been laid down that the dependene or independene of covenants must be collected from the sense and meaning of the parties; and that inwhatever order covenants may standin a deed, their precedency must depend on the order of time which the intent of the transaction requires.

Covenants are inherent that tend to the support of the lan or thing granted,or ae collateral to it; affirmative, or negative; executed, or that which is alreadyd one; executory, or that which is to be done. Shep. Touch. 160; Bac. Abr.Covenant (G); Com. Dig. Covenant (F); Vn. Abr. Covenant (O). Third report of R.P. Comrs. 1 Dav. Convg., also CONSIDERA-TION; CONTRACT; RESTRAINT OF TRADE