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. The first issue was from what facts or documents might the intention that the covenants should enure for the benefit of the retained land be inferred or expressed. On that Morritt J summarised the rival submissions at 595H-596A as follows:
‘the plaintiffs contend that the intention must be manifested in the conveyance in which the covenant was contained when construed in the light of the surrounding circumstances, including any necessary implication in the conveyance from those surrounding circumstances. The defendants claim that such intention may be inferred from surrounding circumstances which fall short of those which would necessitate an implication in the conveyance itself.’
Morritt J held that the authorities demonstrated that the plaintiffs’ submission was correct (at 596F). I agree. The relevant conveyance can be construed in the light of surrounding circumstances, and, like any other instrument, its interpretation can depend not only on its express terms but on any necessary implication; but the exercise remains one of interpreting the document, not of inferring intentions from surrounding circumstances alone.
Morritt J first asked from what fact or facts might it be inferred that the intention in a conveyance was that restrictive covenants should enure for the benefit of the retained land, and recorded the contentions of the parties as follows: ‘On the first issue, the plaintiffs contend that the intention must be manifested in the conveyance in which the covenant was contained when construed in the light of the surrounding circumstances, including any necessary implication in the conveyance from those surrounding circumstances. The defendants claim that such intention may be inferred from surrounding circumstances which fall short of those which would necessitate an implication in the conveyance itself.’
Held: The plaintiffs’ submission was correct, and, having considered the surrounding circumstances: ‘There are no words in the conveyance indicating any such intention, nor do I consider the surrounding circumstances necessitate any implication.’ The successful applicant for a declaration under section 84(2) should be paid its costs by the defendants.
Morritt J
[1989] 1 WLR 590
Law of Property Act 1925 84(2)
England and Wales
Cited by:
Not Followed – University of East London Higher Education Corporation v London Borough of Barking and Dagenham and others ChD 14-Dec-2004
The parties had litigated the sale of land free of restrictive covenants.
Held: The rule that a party was entilted to its costs of defending an action under the Act for the discharge of a covenant at least as far as was necessary for it to . .
Cited – Barnet London Borough Council; Re: Land at Claremont Road comprising Hendon Football Club and Football Ground LT 10-Jul-2006
LT RESTRICTIVE COVENANT – entitlement to benefit – preliminary issue – whether covenant impliedly annexed to land – surrounding circumstances – held no entitlement – objectors not admitted.
The landowners . .
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.
Costs, Land
Updated: 22 December 2021; Ref: scu.220713