A restrictive covenant taken for the protection of a business carried on on land owned by the covenantee was a covenant taken for the benefit of land; in other words a property interest. In this context the word ‘assign’ was apposite to an assignment of the land and not the benefit of the covenant.
A vendor, who carried on the business of an ironmonger on premises known as Devonia, of which she was the owner, conveyed property opposite those premises to a purchaser. The conveyance contained a covenant by the purchaser not to carry on the business of an ironmonger on the property conveyed. The successor in title of the original covenantee sought to enforce the covenant against a successor in title of the original covenantor.
Held: The 1923 conveyance did not annex the benefit of the covenant to Devonia. Upjohn J: ‘In this difficult branch of the law one thing in my judgment is clear, namely, that in order to annex the benefit of a restrictive covenant to land, so that it runs with the land without express assignment on a subsequent assignment of the land, the land for the benefit of which it is taken must be clearly identified in the conveyance creating the covenant.’ A restrictive covenant taken for the protection of a business carried on on land owned by the covenantee was a covenant taken for the benefit of land; in other words a property interest. In this context the word ‘assign’ was apposite to an assignment of the land and not the benefit of the covenant.
Upjohn J
[1952] Ch 286
England and Wales
Cited by:
Cited – Sargeant, and Sargeant v Macepark (Whittlebury) Limited ChD 8-Jun-2004
The landlord granted the tenant a licence to make alterations to the property, but imposed conditions on the use to be made of the resulting premises. The tenant objected.
Held: The landlord was entitled when granting consent to take into . .
Cited – University 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 . .
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.199282