Land was laid out in individual lots and sold off in a standard form requiring that no building should be erected other than one private dwelling house and that plans should be submitted for approval. The defendants purchased one lot and wished to erect an additional house in contravention of the restriction. The plaintiffs owned other lots conveyed by transfers which contained no express assignment of the benefit of the covenant. The plaintiffs sought a declaration that they were entitled to the benefit of that covenant and an order restraining breach. The express words of the covenant excluded annexation, and that there was no building scheme. Nevertheless, the covenant had become annexed to Estate and by section 78 of the 1925 Act, because of a contrast between section 78 and section 79. The legislature must have intended the provisions of section 78 to be mandatory, not capable of exclusion.
Held: the Court rejected that submission. No reason of policy had been suggested to explain why section 78 should be mandatory: ‘I am thus far from satisfied that section 78 has the mandatory operation which [counsel] claimed for it. But if one accepts that it is not subject to a contrary intention, I do not consider that it has the effect of annexing the benefit of the covenant in each and every case irrespective of the other express terms of the covenant. ‘ and ‘The true position as I see it is that even where a covenant is deemed to be made with successors in title as section 78 requires, one still has to construe the covenant as a whole to see whether the benefit of the covenant is annexed. Where one finds the covenant is not qualified in any way, annexation may be readily inferred; but where, as in the present case, it is expressly provided: ‘this covenant shall not enure for the benefit of any owner or subsequent purchaser of any part of the vendor’s Sudbury Court Estate at Wembley unless the benefit of this covenant shall be expressly assigned . . ‘ one cannot just ignore these words. One may not be able to exclude the operation of the section in widening the range of the covenantees, but one has to consider the covenant as a whole to determine its true effect. When one does that, then it seems to me that the answer is plain and in my judgment the benefit was not annexed. That is giving full weight to both the statute in force and also what is already there in the covenant.’
Paul Baker QC
[1984] 1 WLR 40
Law of Property Act 1925 78 79
England and Wales
Citing:
Cited – Federated Homes Ltd v Mill Lodge Properties Ltd CA 29-Nov-1979
Covenents Attach to entire land not just parts
Conveyances contained restrictive covenants but they were not expressly attached to the land. The issue was whether they were merely personal.
Held: Section 78 made the covenant by the purchaser binding on his successors also. The section . .
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 . .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 22 December 2021; Ref: scu.196685
