SQE1 freehold covenants: what you must know and how it is tested

SQE1 freehold covenants questions test whether a covenant binds a later owner of the land and whether a later owner can enforce it. The central rule: restrictive covenants can run with the land in equity, but positive covenants generally cannot. Read it with the wider Land Law guide.

SubjectLand Law (FLK2)

Key lawTulk v Moxhay; LPA 1925, ss78-79

Question typeSingle best answer, five options

The rules to apply

Burden. At common law the burden of a covenant does not pass to a successor (Austerberry v Oldham). A positive covenant, such as to repair a fence or pay towards a road, cannot bind a buyer, but can be indirectly enforced by a chain of indemnity covenants, a rentcharge, or the rule that a person who takes a benefit must accept the burden (Halsall v Brizell).

In equity the burden of a restrictive covenant runs under Tulk v Moxhay if: the covenant is negative in substance (Haywood v Brunswick Building Society); it was made to protect land of the covenantee; the original parties intended it to bind successors (s79 LPA 1925 presumes this); and the buyer has notice. In registered land the covenant must be protected by a notice on the charges register (LRA 2002, s32). In unregistered land it must be registered as a Class D(ii) land charge.

Benefit. The benefit passes by express or statutory annexation (s78 LPA 1925, which annexes the benefit to the covenantee's land if the covenant relates to it, Federated Homes v Mill Lodge), by express assignment, or under a building scheme (Elliston v Reacher). A building scheme needs a common seller, lots sold from a defined area, with covenants imposed for the benefit of all, and an intention that each buyer would be bound for the benefit of all.

Remedies. The usual remedy is an injunction. Damages in place of an injunction may be awarded in a suitable case. The Upper Tribunal can discharge or modify covenants under s84 LPA 1925, for example where they are obsolete or impede reasonable use without practical benefit to anyone. The original covenantor stays liable on the contract even after selling.

Traps examiners use

Treating a positive covenant as binding a buyer.
Forgetting to check for notice (registration) on the burden side.
Forgetting that the benefit and burden are separate questions.
Missing that a building scheme allows enforcement between neighbours.
Thinking the original covenantor is released on sale.
Confusing covenants in a lease with freehold covenants.

Worked question 1

A developer sells plot 7 to Anna with two covenants: not to use it except as a single dwelling, and to pay a share of the cost of maintaining the private road. Anna sells to Ben, who has notice of both. The covenants were protected on the register. The developer, who retains other land, wishes to enforce them. Which is correct?

A. Both covenants bind Ben.
B. Neither binds Ben, because covenants never run.
C. The restriction on use binds Ben but the road contribution does not, as it is a positive covenant.
D. The road contribution binds Ben but the restriction does not.
E. Both bind Ben only if the developer sells the rest of the land.

Answer: C. A negative covenant can bind a successor in equity if the conditions are met, including notice. The burden of a positive covenant does not pass at common law. A and D reverse the rule, and B overstates it, as restrictive covenants run. Ben may still be bound to the road contribution by a chain of indemnity covenants or Halsall v Brizell, but the covenant itself does not run.

Worked question 2

An estate of 20 houses was laid out in 1950 by a developer who sold each plot with identical restrictive covenants, to keep the character of the estate, under a plan. Nora, who bought recently, wishes to stop a neighbour building a garage in breach. No express assignment of the benefit was made to her. Is she likely to succeed?

A. No, because Nora was not an original party.
B. Yes, because a building scheme creates mutually enforceable covenants among the plot owners.
C. No, because the developer has sold all the land.
D. Yes, but only if the covenant is positive.
E. No, because covenants cannot be enforced after 1950.

Answer: B. The common seller, defined area and mutual intention show a building scheme under Elliston v Reacher, so each owner can enforce the covenants against the others. Nora does not need an express assignment. C is wrong, as the scheme lets neighbours enforce even after the developer has sold up.

Checklist before you move on

Is the covenant positive or negative in substance?
Burden: Tulk v Moxhay conditions and notice.
Benefit: annexation, assignment or building scheme?
Registered land: notice on charges register.
Remedy: injunction, damages, s84 discharge.
Positive covenant: chain of indemnity or benefit and burden?

Test yourself on more original questions in our SQE1 practice questions.

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Questions

Can positive covenants run with freehold land?

Not at common law or in equity. They can be enforced indirectly, for example through chains of indemnity covenants or the benefit and burden principle.

What is a building scheme?

A scheme where a common seller sells plots in a defined area with covenants intended to benefit and bind all buyers, so owners can enforce the covenants against each other.

Can a restrictive covenant be removed?

By agreement, or by application to the Upper Tribunal (Lands Chamber) under s84 of the Law of Property Act 1925 on specified grounds.

Sources: SRA: SQE1 Assessment Specification (from 1 September 2026); Law of Property Act 1925; Land Registration Act 2002. Checked 10 November 2026.