This appeal concerns the question whether an area of land in Bath known as the Recreation Ground, commonly called ‘the Rec’, is still subject to a restrictive covenant imposed in a conveyance of the Rec dated 6 April 1922 (‘the 1922 conveyance’). That turns on the question whether there is anyone who can now claim to be entitled to the benefit of the covenant, and that in turn depends on whether the effect of the 1922 conveyance was to annex the benefit of the covenant to identifiable land.
Lady Justice King,
Lord Justice Newey,
And,
Lord Justice Nugee
[2021] EWCA Civ 1927
Bailii, Judiciary
Law of Property Act 1925 84(2)
England and Wales
Citing:
Appeal from – Bath Rugby Ltd v Greenwood and Others (PRE-1926 Restrictive Covenants Affecting Land) ChD 13-Oct-2020
The Court was asked whether a covenant had been attached to the land.
Held: the effect of a 1922 conveyance was to annex the benefit of the covenant to land of the vendor and his tenants adjoining or near the Rec. That meant that Mr White and . .
See Also – Bath Rugby Ltd v Greenwood and Others (Costs : Special Considerations) ChD 27-Oct-2020
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Cited – Tulk v Moxhay 22-Dec-1848
Purchaser with notice bound in Equity
A, being seised of the centre garden and some houses in Leicester Square, conveyed the garden to B in fee, and B covenanted for himself and his assigns to keep the garden unbuilt upon.
Held: A purchaser from B, with notice of the covenant, was . .
Cited – Federated Homes Ltd v Mill Lodge Properties Ltd CA 29-Nov-1979
Covenents Attach to entire land not just parts
Conveyances contained restrictive covenants but they were not expressly attached to the land. The issue was whether they were merely personal.
Held: Section 78 made the covenant by the purchaser binding on his successors also. The section . .
Cited – Bath and North East Somerset Council v HM Attorney General, The Treasury Solicitor (Bona Vacantia) ChD 31-Jul-2002
Land was conveyed to the Council’s predecessor on condition that it be left available for use for sports and similar recreations, and left as an open space. It was now sought to develop the land as a home for a football club. The Council sought . .
Cited – Rhone and Another v Stephens HL 17-Mar-1994
A house was divided, the house being retained along with the roof over the cottage, and giving a covenant to repair the roof on behalf of the owner of the house. The cottage owner sought to enforce the covenant against a later owner of the house. . .
Cited – Renals v Cowlishaw CA 2-Jan-1879
The vendors were trustees for sale of a mansion-house and property, known as the Mill Hill estate, and some adjoining pieces of land and sold two of the adjoining pieces in 1845. The conveyance contained a covenant by the purchaser with the vendors, . .
Cited – Renals v Cowlishaw 1879
The word ‘assigns’ was used to denote the successors in title to the land both of the original restrictive covenantor and of the original covenantee.
Held: this was insufficient to enable a subsequent owner of the Mill Hill estate who did not . .
Cited – Ives v Brown 1919
Covenants restraining nuisance are ‘Framed for the very purpose of securing a much more adequate protection than that given by the ordinary law of nuisance’ . .
Cited – Smith and Snipes Hall Farm Ltd v River Douglas Catchment Board CA 1949
Benefit of Covenant Ran with Land
In 1938, landowners and the Catchment Board agreed that the Board would make good and maintain the banks of a stream, with the landowners contributing to the cost. The agreement was not said to be for the benefit of the landowner’s successors in . .
Cited – Formby v Barker ChD 14-Jul-1903
When on the sale of the whole of a vendor’s land the purchaser enters into a covenant restricting the user of the land, the executor of the vendor cannot maintain an action for an injunction against an assign of the purchaser in respect of a breach . .
Cited – Crest Nicholson Residential (South) Ltd v McAllister CA 1-Apr-2004
Land had been purchased which was subject to a restrictive covenant. The papers did not disclose the precise extent of the dominant land, the land which benefitted from the restriction.
Held: The land having the benefit of a covenant had to be . .
Cited – Ives v Brown 1919
Covenants restraining nuisance are ‘Framed for the very purpose of securing a much more adequate protection than that given by the ordinary law of nuisance’ . .
Cited – J Sainsbury plc v Enfield London Borough Council 1989
Land had been conveyed in 1894, the purchaser covenanting with the vendor (alone). The fact that the vendor retained other land was apparent from other parts of the conveyance, but the covenant was not expressed to be for the benefit of that land. . .
Cited – Re Union of London and Smith’s Bank Ltd’s Conveyance, Miles v Easter ChD 1933
The court considered whether a covenant which was annexed to retained land was annexed to the entire plot only, and not to any part of it.
Bennett J said: ‘In my judgment, in order that an express assignee of a covenant restricting the user of . .
Cited – Shropshire County Council v Edwards 1982
If in the instrument creating a restrictive covenant before 1926, both the land which is intended to be benefited and an intention to benefit that land, as distinct from benefiting the covenantee personally, can clearly be established, then the . .
Cited – Drake v Gray CA 1936
The court considered the enuring of the benefit of a restrictive covenant. Romer LJ said: ‘. . where one finds not ‘the land coloured yellow’ or ‘the estate’ or ‘the field named so and so’ or anything of that kind, but ‘the lands retained by the . .
Cited – Marquess of Zetland v Driver CA 1939
The vendor was tenant for life of settled land at Redcar. By a 1926 conveyance part was conveyed to a purchaser who covenanted ‘to the intent and so as to bind as far as practicable the said property hereby conveyed into whosesoever hands the same . .
Cited – re Selwyn’s Conveyance 1967
. .
Cited – Russell v Archdale ChD 1964
If a covenant was given for the benefit of the whole of a parcel of freehold land, the presumption was that the covenant did not enure for the benefit of subdivided parts of that land unless a development scheme applied to the land . .
Cited – Newton Abbot Co-operative Society Ltd v Williamson and Treadgold Ltd ChD 1952
A restrictive covenant taken for the protection of a business carried on on land owned by the covenantee was a covenant taken for the benefit of land; in other words a property interest. In this context the word ‘assign’ was apposite to an . .
Cited – Site Developments (Ferndown) Ltd and Others v Cuthbury Ltd and Others ChD 13-Jan-2010
A covenant was made in 1926 with ‘the Vendor and his successors in title the owner or owners for the time being of the Canford Estate of which the land hereby transferred and conveyed forms part’. Vos J held that it could only be enforced by the . .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 28 December 2021; Ref: scu.670635