# Freehold covenants: benefit and burden running with land

> **Key takeaway:** Restrictive burden can run in equity (Tulk) with notice/registration. Positive burden generally does not (Rhone; Austerberry at law). Benefit: touch and concern + annexation/assignment/scheme. Leasehold rules differ.

- **Jurisdiction:** England & Wales
- **Practice area:** Property
- **Last reviewed:** 2026-08-04
- **Interactive page:** https://kttclegal.info/library/notes/Property/freehold-covenants
- **Keywords:** freehold covenants, restrictive covenant, Tulk v Moxhay, Rhone v Stephens, positive covenant, annexation, Austerberry, running of covenants

## What is this about?

Freehold covenants regulate land use between neighbouring freeholders. Whether successors can enforce or are bound depends on separate rules for the benefit and the burden, at law and in equity, and on registration/notice under the land registration system.

## What is the core rule?

At law, the burden of a freehold covenant does not run with freehold land (Austerberry); the benefit may run if the covenant touches and concerns the land and the requirements for annexation, assignment, or building-scheme are met. In equity, the burden of a restrictive covenant can run against a successor with notice if the covenant is negative in substance and benefits dominant land (Tulk v Moxhay). Positive covenants still generally do not bind successors directly (Rhone v Stephens), subject to limited workarounds (chains of indemnity, estate rentcharges, commonhold, or statutory schemes).

## What are the elements or test?

1. Is the covenant restrictive (negative in substance) or positive?
2. Benefit: does it touch and concern dominant land; has it been annexed, assigned, or passed under a building scheme?
3. Burden in equity (restrictive only): successor bound if Tulk conditions satisfied and not a bona fide purchaser without notice (registered land: notice/restriction mechanics)
4. Positive covenant: is there a chain of indemnity, mutual benefit/burden (rare and narrow), or other enforcement structure?
5. Remedies: injunction, damages in lieu (s.50 Senior Courts Act / equitable damages), declaration

## Which authorities matter?

- **Tulk v Moxhay (1848) 2 Ph 774** — Equity allows the burden of a restrictive covenant to run against a purchaser with notice.
- **Austerberry v Oldham Corporation (1885) 29 Ch D 750** — At law the burden of a freehold covenant does not run with the land.
- **Rhone v Stephens [1994] 2 AC 310** — House of Lords reaffirms that the burden of positive freehold covenants does not run in equity either.
- **Federated Homes Ltd v Mill Lodge Properties Ltd [1980] 1 WLR 594** — Influential Court of Appeal approach to statutory annexation under LPA 1925 s.78 (read with later refinements on intended annexation).

## How does this apply in practice?

Leasehold covenants have different enforcement rules (privity of estate / LT(C)A 1995) — do not import freehold learning wholesale. Always check the register for notices of restrictive covenants. Law Commission reform debates on positive covenants are not a substitute for current law.

## What are common pitfalls?

- Assuming positive repairing covenants bind freehold successors like restrictive user covenants
- Forgetting separate analyses for benefit and burden
- Ignoring registration/notice so that equity's notice doctrine is misapplied to registered titles
- Treating indemnity covenants as creating direct liability to the original covenantee without the chain

## When would a practitioner use this?

Use in development control, neighbour disputes, and title diligence on freehold sales.

## Quick reference

Restrictive burden can run in equity (Tulk) with notice/registration. Positive burden generally does not (Rhone; Austerberry at law). Benefit: touch and concern + annexation/assignment/scheme. Leasehold rules differ.

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*Reference material from [KTTC Legal](https://kttclegal.info/), not legal advice. Work product supports instructing solicitors and barristers under their supervision. England & Wales.*