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 provides for statutory annexation of any covenant which touches and concerns the land, and the covenant is annexed to every part of the land, in the absence of a clear contrary indication.
Lord Brightman said: ‘An express assignment of the benefit of a covenant is not necessary if the benefit of the covenant is annexed to the land. In that event, the benefit will pass automatically on a conveyance of the land, without express mention, because it is annexed to the land and runs with it.’ The covenant ‘related to the land of the covenantee’, or touched and concerned the land, even if the document must show an intention to benefit identified land.’ and ‘If, as the language of section 78 implies, a covenant relating to land which is restrictive of the user thereof is enforceable at the suit of (1) a successor in title of the covenantee, (2) a person deriving title under the covenantee or under his successors in title, and (3) the owner or occupier of the land intended to be benefited by the covenant, it must, in my view, follow that the covenant runs with the land, because ex hypothesi every successor in title to the land, every derivative proprietor of the land and every other owner and occupier has a right by statute to the covenant. In other words, if the condition precedent of section 78 is satisfied; that is to say, there exists a covenant which touches and concerns the land of the covenantee–that covenant runs with the land for the benefit of his successors in title, persons deriving title under him or them and other owners and occupiers.’
and ‘I find the idea of the annexation of a covenant to the whole of the land but not to a part of it a difficult conception fully to grasp. I can understand that a covenantee may expressly or by necessary implication retain the benefit of a covenant wholly under his own control, so that the benefit will not pass unless the covenantee chooses to assign; but I would have thought, if the benefit of a covenant is, on a proper construction of a document, annexed to the land, prima facie it is annexed to every part thereof, unless the contrary clearly appears.’
Lord Justice Megaw: ‘For myself, I would regard the observations made in the passage which Brightman LJ read from Megarry and Wade, The Law of Real Property, 4th edition, page 763, as being powerful reasons, and I find great difficulty in understanding how, either as a matter of principle, or as a matter of practical good sense in relation to a legal relationship of this sort, it can be said that a covenant, which ex hypothesi has been annexed to the land as a whole, is somehow or other not annexed to the individual parts of that land.’
Lord Justice Brightman, Lord Justice Megaw
[1980] 1 WLR 594, [1980] 1 All ER 371, [1979] EWCA Civ 3
Bailii
Law of Property Act 1925 78(1)
England and Wales
Citing:
Cited – Rogers 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 . .
Cited – Shelfer v City of London Electric Lighting Company, Meux’s Brewery Co v Same CA 1895
The plaintiff sought damages and an injunction for nuisance by noise and vibration which was causing structural injury to a public house.
Held: The court set out the rules for when a court should not grant an injunction for an infringement of . .
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 – Tophams Ltd v Earl of Sefton HL 1967
Section 79 of the Law of Property Act (relating to the burden of covenants) achieved no more than the introduction of statutory shorthand into the drafting of covenants. It does does not have the effect of causing covenants to run with the land . .
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 – 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 by:
Cited – Crest 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 . .
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 – Roake 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 . .
Cited – Mohammadzadeh 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 . .
Cited – Small v Oliver and Saunders (Developments) Ltd ChD 25-May-2006
The claimant said his property had the benefit of covenants in a building scheme so as to allow him to object to the building of an additional house on a neighbouring plot in breach of a covenant to build only one house on the plot. Most but not all . .
Cited – Seymour 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 . .
Cited – Bath 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.
Land, Contract
Leading Case
Updated: 22 December 2021; Ref: scu.196677