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 may come and to benefit and protect such part or parts of the lands in the Borough Township or Parish of Redcar . . now subject to the settlement (a) as shall for the time being remain unsold or (b) as shall be sold by the vendor or his successors in title with the express benefit of this covenant . . that he would observe restrictions including a restriction on use which, in the opinion of the vendor, might be detrimental to him or the owners or occupiers of any adjoining property in the neighbourhood.’ The land was later conveyed to the defendant for a use (sale of fried fish) to which the plaintiff objected.
Held: The covenant was enforceable by a successor in title of the original covenantee against a successor in title of the original covenantor.
Farwell J said: ‘The covenant is restrictive; it is expressly stated in the conveyance to be for the benefit of the unsold part of the land comprised in the settlement and such land is easily ascertainable, nor is it suggested that at the date of the conveyance the land retained was not capable of being benefited by the restrictions, and lastly the appellant is the successor in title of the original covenantee and as such is the estate owner of part of the land unsold which is subject to the settlement.’ (Emphasis added.) But the court went on: ‘It is to be noticed in the present case that the benefit of the covenant is not intended to pass to a purchaser without express assignment. It is not necessary for us to express any opinion as to what would be the effect of a sale of part of the settled property with an express assignment of the covenant; but, if such a purchaser could enforce the covenant, it could only be for so long as some successor in title of the original covenantee retained some part of the settled property, since such a person alone can form the requisite opinion. For these reasons the appeal must be allowed. The appellant is entitled to the injunction which he seeks subject to two limitations. In the first place the injunction must be limited to fried fish … because the opinion of the appellant as to the nuisance was confined to fried fish, and secondly, the period of the injunction must be confined to so long as the appellant or some successor in title of the original vendor retains unsold any part of the settled property for the benefit of which the covenant was imposed.’
Farwell J: ‘Covenants restricting the user of land imposed by a vendor upon a sale fall into three classes: (i) covenants imposed by a vendor for his own benefit; (ii) covenants imposed by a vendor as owner of other land, of which that sold formed a part, and intended to protect or benefit the unsold land; and (iii) covenants imposed by a vendor upon a sale of land to various purchasers who are intended mutually to enjoy the benefit of and be bound by the covenants . . . Covenants of the first class are personal to the vendor and enforceable by him alone unless expressly assigned by him. Covenants of the second class are said to run with the land and are enforceable without express assignment by the owner for the time being of the land for the benefit of which they were imposed. Covenants of the third class are most usually found in sales under building scheme, although not strictly confined to such sales. It is not suggested that the present covenant falls within this class. Nor will it assist the appellant if it falls within the first class, since he was not the original covenantee or an express assignee from him. If, therefore, the appellant is entitled to sue on this covenant it must fall within the second class above mentioned. Such covenants can only be validly imposed if they comply with certain conditions. Firstly, they must be negative covenants. No affirmative covenant requiring the expenditure of money or the doing of some act can ever be made to run with the land. Secondly, the covenant must be one that touches or concerns the land, by which is meant that it must be imposed for the benefit or to enhance the value of the land retained by the vendor or some part of it, and no such covenant can ever be imposed if the sale comprises the whole of the vendor’s land. Further, the land retained by the vendor must be such as to be capable of being benefited by the covenant at the time when it is imposed. Thirdly, the land which is intended to be benefited must be so defined as to be easily ascertainable, and the fact that the covenant is imposed for the benefit of that particular land should be stated in the conveyance and the persons or the class of persons entitled to enforce it. The fact that the benefit of the covenant is not intended to pass to all persons into whose hands the unsold land may come is not objectionable so long as the class of persons intended to have the benefit of the covenant is clearly defined.’ ‘The appellant is entitled to the injunction which he seeks subject to two limitations. In the first place the injunction must be limited to fried fish . . . because the opinion of the appellant as to the nuisance was confined to fried fish, and secondly, the period of the injunction must be confined to so long as the appellant or some successor in title of the original vendor retains unsold any part of the settled property for the benefit of which the covenant was imposed. . . .’
Farwell J
[1939] Ch 1
England and Wales
Citing:
Cited – Osborne v Bradley ChD 1903
The plaintiff had sold land to the purchaser, subject to covenants restricting the development on the land to private dwellings and prohibiting manufacture, trade or business on the land. The purchaser built two houses and subsequently sold the land . .
Cited by:
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 – 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 – City Inn (Jersey) Ltd v Ten Trinity Square Ltd CA 6-Mar-2008
A release of a restrictive covenant had been granted to a predecessor in title of the claimants. The defendants said that the release had been personal to the party to whom it was given, and that the covenant still bound the land.
Held: The . .
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 – Margerison 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 . .
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
Updated: 22 December 2021; Ref: scu.196682