Burden of obligation imposing restriction on use of land II Sec 40 of Transfer of Property Act 

Burden of obligation imposing restriction on use of land II Sec 40 of Transfer of Property Act
Topics covered in the video -
40 (1) : Covenant attached with the land
Where, for the more beneficial enjoyment of his own immoveable property, a third person has, independently of any interest in the immoveable property of another or of any easement thereon, a right to restrain the enjoyment (in a particular manner of the latter property), or of obligation annexed to ownership but not amounting to interest or easement.
40 (2) : Contractual obligation
Where a third person is entitled to the benefit of an obligation arising out of contract and annexed to the ownership of immoveable property, but not amounting to an interest therein or easement thereon, such right or obligation may be enforced against a transferee with notice thereof or a gratuitous transferee of the property affected thereby, but not against a transferee for consideration and without notice of the right or obligation, not against such property in his hands.
Case Laws discussed in the video
Roger's Case
In this case L.J Farewell stated the characterstics of Covenant
1. Restrctions should be imposed from initial.
2. Restrictions should be realted to the use of that land.
3. Benefit should be observe for which restriction was imposed
Tulk v. Moxhay
The claimant, Tulk, sold his property in Leicester Square, London, and , making the purchaser promise to not build on the property so as to help keep Leicester Square ‘uncovered with buildings’ and creating an equitable covenant. The purchaser subsequently sold the land and it underwent multiple transactions, and was eventually purchased by the defendant, Moxhay. Whilst Moxhay was aware of the covenant attached to the land at the time of the transaction, he claimed it was unenforceable as he had not been a party to the original transaction in which the covenant had been made.
In this case Lord Cottenham passed an injunction to prevent Moxhay from building on the land as a covenant amounts to a contract between a transferor and transferee, it is enforceable against a subsequent transferee if he have either constructive or actual notice. As Moxhay had actual notice of the covenant, he was obligated to abide by it.
Haywood v Brunswick Permanent Benefit Building Society
In this case L.J. Cotten discussed the types of Covenant -
1. Personal Covenant - It is a personal agreement between two person. (not applicable on subsequent transferee)
2. Where the transferor transfers his entire property property. (not to be executed)
3. Where the transferor transfer only one portion of property. It can be executed if covenant is negative in nature.
Positive Covenant - Condition Attached of doing something.
Negative Covenant - Condition refrain from doing something
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