A covenant is an agreement written under seal commonly used with reference to sales or leases of land. Covenants are privately negotiated and agreed not necessarily obligating both parties involved, but a promise to perform or give something to the other party. The legal document is part of the deed of ownership and represents a binding contract between two parties: the covenantor (the person bound to perform the promise or stipulation) and the covenantee (the person on whose favour it is made). In this instance, Robert is the covenantor, one doing the favour, and John is the covenantee, for whom the favour is intended. Favour at this instance is the retaining wall in Robert's property.
Covenants are subdivided into numerous classes. Restrictive covenant is a covenant which restricts the use of land, which is binding not only upon the current owner, but also upon the future owners of the land. A covenant real runs with the land and descends to the heir and is also transferred to a purchaser. If the original owner of Robert's land covenanted to maintain the wall, then the nature of the covenant is a restrictive covenant. Robert is obliged by the restrictive covenant to maintain the retaining wall that already exists.
Trying to get a covenant enforced is risky and can be expensive and time consuming. If a covenant is breached, John should check if enforcement is possible by going through the courts. He would need to prove if his rights are affected. If Robert fails to maintain the retaining wall on his property and risks to damage or cause detriment to John's property, John must show that the disrepair of the retaining wall amounts to liability on Robert's part.
2. Does John have a right of support from the wall What is the nature and effect of such a right
John has a right of lateral support from the wall. Since John's property or soil had not been altered and it was in its natural state, thereby allowing for the right of lateral support. Lateral support is the right of a landowner expected from the neighbouring property against any slippage, cave-in, landslide, flood, etc. In the case of the two owners, in addition to separating lands, the retaining wall serves to retain the earth. Although John's land is at a much lower level than Robert's, he still has the right of lateral support since the right signifies maintaining the land in its natural position. Since Robert owns the retaining wall, it is his obligation to maintain the wall to prevent soil from slippage upon the adjoining property and that the damage or impending damage is due to the natural state of his property, at this instance, the growing roots of a tree in his property. This impending damage on another's natural state of property requires Robert to give due John's right of lateral support.
In this instance where John's property is in danger of land slippage from Robert's property due to a caving or damaged retaining wall that has been covenanted by Robert, caused by the growing trees in Robert's property, John may seek lateral support.
3. Can the tree be chopped down if it is subject to a tree preservation order
John needs to request from