The court considered the effect of section 62 of the 1925 Act.
Sir Nicholas Browne-Wilkinson V-C said: ‘The main intention of Section 62 was to provide a form of statutory shorthand rendering it unnecessary to include such words expressly in every conveyance. It is a matter of debate whether, in the context of the section, the words ‘rights . . appertaining to the land’ include rights arising under a covenant as opposed to strict property rights. However, I will assume, without deciding, that rights under covenant are within the words of the section. Even on that assumption, it still has to be shown that the right ‘appertains to the land’. In my judgment, a right under covenant cannot appertain to the land unless the benefit is in some way annexed to the land. If the benefit of a covenant passes under Section 62 even if not annexed to the land, the whole modern law of restrictive covenants would have been established on an erroneous basis. Section 62 (1) replaces Section 6 (1) of the Conveyancing Act 1881. If the general words ‘rights . . appertaining to land’ operate to transfer the benefit of a negative restrictive covenant, whether or not such benefit was expressly assigned, it would make all the law developed since 1881 unnecessary. It is established that, in the absence of annexation to the land or the existence of a building scheme, the benefit of a restrictive covenant cannot pass except by way of express assignment. The law so established is inconsistent with the view that a covenant, the benefit of which is not annexed to the land, can pass under the general words in Section 62. Therefore, in my judgment, the Plaintiff cannot rely on Section 62 unless, at the least, he can show that the surety covenant touches and concerns the land so as to be capable of annexation, a point which I consider at (3) below.’
Sir Nicholas Browne-Wilkinson V-C, Croom-Johnson, Neill LJJ
[1987] EWCA Civ 1, [1989] 1 QB 193, (1987) 55 P and CR 64, [1987] 2 EGLR 39, [1987] 3 WLR 1167, (1987) 283 EG 59
Bailii
Law of Property Act 1925 62
England and Wales
Cited by:
Approved – P and A Swift Investments v Combined English Stores Group Plc HL 7-Jul-1988
The House was asked as to whether a covenant touched and concerned the land.
Held: Lord Oliver of Aylmerton said: ‘Formulations of definitive tests are always dangerous, but it seems to me that, without claiming to expound an exhaustive guide, . .
Cited – Harbour Estates Limited v HSBC Bank Plc ChD 15-Jul-2004
The lease contained a break clause. The parties disputed whether the benefit of the clause was personal to the orginal lessee, or whether it touched and concerned the land, and therefore the benefit of it passed with the land.
Held: The . .
Cited – JBW Group Ltd v Westminster City Council CA 12-Mar-2010
The tenant had applied to the landlord for consent to assign certain leases. The court had declared the right to exercise break clauses in certain leases as lost. The court had found the right to be lost after the assignment of the leases by the . .
Lists of cited by and citing cases may be incomplete.
Updated: 25 September 2021; Ref: scu.245287