P and A Swift Investments v Combined English Stores Group Plc: HL 7 Jul 1988

The House was asked as to whether a covenant touched and concerned the land.
Held: Lord Oliver of Aylmerton said: ‘Formulations of definitive tests are always dangerous, but it seems to me that, without claiming to expound an exhaustive guide, the following provides a satisfactory working test for whether, in any given case, a covenant touches and concerns the land: (1) The Covenant benefits only the reversioner for the time being and, if separated from the reversion, ceases to be of benefit to the covenantee: (2) The Covenant affects the nature, quality, mode of user or value of the land of the reversioner: (3) The Covenant is not expressed to be personal, that is to say neither being given only to a specific reversioner nor in respect of the obligations only of a specific tenant: (4) The fact that a covenant is to pay a sum of money will not prevent it from touching and concerning the land so long as the three foregoing conditions are satisfied and the covenant is connected with something to be done on to or in relation to the land.’
Lord Oliver of Aylmerton
[1988] UKHL 3, [1989] AC 632
England and Wales
ApprovedKumar v Dunning and Another CA 15-Apr-1987
The court considered the effect of section 62 of the 1925 Act.
Sir Nicholas Browne-Wilkinson V-C said: ‘The main intention of Section 62 was to provide a form of statutory shorthand rendering it unnecessary to include such words expressly in . .

Cited by:
CitedHarbour Estates Limited v HSBC Bank Plc ChD 15-Jul-2004
The lease contained a break clause. The parties disputed whether the benefit of the clause was personal to the orginal lessee, or whether it touched and concerned the land, and therefore the benefit of it passed with the land.
Held: The . .
CitedSystem Floors Ltd v Ruralpride Ltd and Another CA 31-Oct-1994
A break clause was contained in an agreement not in the lease but in a side letter which made the benefit of the break clause personal to the original lessee but said nothing express as to whether the burden of the break clause passed to an assignee . .

These lists may be incomplete.
Updated: 01 February 2021; Ref: scu.248721