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 easily ascertainable. It would be oppressive to expect a purchaser of land to establish the facts himself. Those drafting such covenants should bear in mind the probable need for the covenant to be examined many years later. A restrictive covenant affecting land will not be enforceable in equity against a purchaser who acquires a legal estate for value without notice of the covenant. A restrictive covenant imposed in an instrument made after 1925 is registrable as a land charge. If the title is registered, protection is effected by entering notice of the restrictive covenant on the register. In this case the land no longer had the benefit of the covenant, it had not been annexed or assigned.

Lord Justice Auld Lord Justice Chadwick And Lady Justice Arden
[2004] EWCA Civ 410, Times 06-May-2004, [2004] 1 WLR 2409, [2004] 2 All ER 991, [2004] 2 P and CR 486
England and Wales
Appeal fromCrest Nicholson Residential (South) Ltd v McAllister ChD 18-Nov-2002
A vendor/purchaser covenant was not to use the premises, ‘for any purpose other than those of or in connection with a private dwellinghouse.’ The parties requested the court to construe its meaning. The meaning had been considered before and settled . .
CitedTulk 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 . .
CitedFederated 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 . .
CitedRogers v Hosegood ChD 1900
The vendors were partners in Cubitt and Co, a well-known firm of builders who had laid out land in Palace Gate, Kensington in building plots suitable for large private houses. In 1869 they twice sold and conveyed plots to the Duke of Bedford subject . .
CitedMarquess 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 . .
CitedDano Ltd v Earl Cadogan and others CA 19-May-2003
The defendants appealed against an order declaring that restrictive covenants on land of which they claimed the benefit were no longer of effect.
Held: The covenants were expressed to be in favour of property for so long as it formed part of . .
CitedRoake and others v Chadha and another QBD 1984
Land was laid out in individual lots and sold off in a standard form requiring that no building should be erected other than one private dwelling house and that plans should be submitted for approval. The defendants purchased one lot and wished to . .
CitedWhitgift Homes Limited and Others v Pauline Stocks and Others CA 21-Nov-2001
Annexation of covenants – building scheme – enforceability after plots sold off. . .
AppliedDobbs v Linford CA 1953
The tenant had entered into a covenant: ‘not to use the said premises for any purpose other than as a private dwelling-house And not to sublet or part with the possession of the premises (except as a furnished house) without the consent in writing . .

Cited by:
CitedUniversity of East London Higher Education Corporation v London Borough of Barking and Dagenham and others ChD 9-Dec-2004
The University wanted to sell land for development free of restrictive covenants. It had previously been in the ownership of both the servient and dominant land in respect of a restrictive covenant. The Borough contended that the restrictive . .
CitedMohammadzadeh v Joseph and others ChD 15-Feb-2006
The parties disputed whether the defendants owned the benefit of a restrictive covenant.
Held: The covenant did touch and concern the land, and the land with the benefit of covenant. The conditions under Federated Homes were met. The covenants . .
CitedSeymour Road (Southampton) Ltd v Williams and Others ChD 29-Jan-2010
The claimant sought a declaration that restrictive covenants imposed in 1896 affecting its land were no longer effective.
Held: The declaration was granted. Under the 1881 Act (as opposed to the 1925 Act) covenants were not automatically . .
CitedMargerison v Bates and Another ChD 30-May-2008
The court considered the construction of a restrictive covenant after the disappearance of the covenantee. The covenant required no additional building without the consent of the covenantee, such consent not to be unreasonably withheld. The term . .
CitedMartin v David Wilson Homes Ltd CA 28-Jun-2004
The court considered the construction of a restrictive covenant, and was asked whether an indefinite article ‘a private dwellinghouse’ was to be construed as a limitation of number or whether it was to be construed as being as to the manner of use. . .
CitedBath Rugby Ltd v Greenwood and Others CA 21-Dec-2021
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’). . .

Lists of cited by and citing cases may be incomplete.


Updated: 22 December 2021; Ref: scu.195115