A lease of a plot of land fronting a road contained a covenant by the lessor, who was also the owner of land with a hotel on the opposite side of the road, not to build on the hotel site except to a specified extent. Subsequently, the lessee acquired the freehold reversion. The successor to the hotel site brought an action for a declaration that, the lease having been extinguished by merger, the covenant was no longer enforceable.
Held: On the facts there had been merger, and the covenant was accordingly unenforceable. The court rejected the defendant’s argument that ‘though the leases no longer exist a corresponding right to enforce the covenants in equity against the plaintiff remains attached to the houses until the date when the leases would have expired.’ There need be ‘nothing unconscionable’ in a party taking advantage of a conveyancer’s mistake for a neighbour. As to the intention to merge the lease, Cross J said: ‘it is possible, though no doubt unlikely, that (the relevant parties) intended to give up any right to enforce the covenant in the respective leases against the plaintiff, and even if one assumes-which is much more likely-that they did not so intend and that the positive declarations that the lease should merge in the freeholds were inserted per incuriam, there is nothing unconscionable in the plaintiff, who was not concerned in the matter, taking advantage of the faulty conveyancing.’
Judges:
Cross J
Citations:
[1965] 2 All ER 506
Citing:
Distinguished – Birmingham Joint Stock Co v Lea 1877
The court considered whether a covenant in a lease survived its extinction: ‘though the old under-lease was gone it was clearly part of the arrangement that the defendant should remain subject to the covenant and that accordingly he remained bound . .
Cited by:
Cited – Wall v Collins and Another CA 17-May-2007
Properties, when leasehold, had acquired rights of way by prescription over neighbouring land. The freehold interests were acquired, and the claimant now appealed a decision that the right of way acquired under his lease had disappeared.
Held: . .
Lists of cited by and citing cases may be incomplete.
Land, Landlord and Tenant
Updated: 01 May 2022; Ref: scu.252417