Land - Easement & Restrictive Covenants (4)

6. In 1960 Victor was the owner of an acre of land. He divided it into two plots and built a house on each. He retained plot 1 and lived there. He sold plot 2 to Arthur who covenanted “with the vendor, his heirs and assigns” to observe various restrictive covenants and to bear half the cost of maintaining the fences separating the two plots. Victor covenanted “with the purchase, his heirs and assigns” to bear the other half of the cost of maintaining the fences. Charles, the present owner of plot 2, wants to know whether he is bound by any of the covenants, and whether he can make Donald, the present owner of plot 1 contribute to the maintenance of the fences.
Advise Charles. What if the original division and sale had occurred in 1920?

Burden from Arthur to Charles?
- Negative (restrictive) covenant: Yes
- Beneftis covenantee’s land: Yes
- Intention: Presumed
- Registered: ?

Benefits from Victor to Donald?
- Touch & concerns the land: Yes
- Wording cannot identified the benefited land: No annexation

Half cost of maintaining the fence
- Positive covenant will not run against successor
- However, might be binding based on mutual benefits covenant principle

If in 1920?
- Passing of burden from A to C: No requirement of registration - instead use doctrine of notice- Passing of benefits from V to D: No s78, No Federated Home rules – instead more strict rules on wording requirement for annexation