Benefit of Covenant Ran with Land
In 1938, landowners and the Catchment Board agreed that the Board would make good and maintain the banks of a stream, with the landowners contributing to the cost. The agreement was not said to be for the benefit of the landowner’s successors in title. In 1940, the first plaintiff took a conveyance from one of the landowners of a part of the land, together with an express assignment of the benefit of the agreement. There was no assignment of the benefit of that agreement in favour of the second plaintiff, the tenant. In 1946, the brook burst its banks, and the land was flooded.
Held: Under section 78 of the Law of Property Act 1925, the tenant could sue the Catchment Board for damages. Section 76 caused the benefit of the agreement to run with the land, so as to benefit the tenant.
Tucker LJ: ‘As to the requirement that the deed containing the covenant must expressly identify the particular land to be benefited, no authority was cited to us and in the absence of such authority I can see no valid reason why the maxim ‘Id certum est quod certum reddi potest’ should not apply, so as to make admissible extrinsic evidence to prove the extent and situation of the lands of the respective land owners adjoining the Eller Brook situate between the Leeds and Liverpool Canal and the River Douglas.’
Somervell LJ set out the conditions for attachment set out in Rogers v Hosegood and said: ‘Both these conditions seem to me to be satisfied. The learned judge goes on to say that in addition there must be an intention that the covenant should so run. I have already dealt with this. It is said, rightly, that the land intended to be protected must be described so as to be ascertainable with reasonable accuracy. It was submitted that it was not so described in this case. It is true that evidence outside the instrument itself would be necessary to show what were the parcels covered by the agreement. This was true of the agreement in Rogers v Hosegood, where the covenant was with named owners (a partnership) …. ‘to all or any of their lands adjoining or near to the said premises.’ There are many cases in which the lands to be benefited are not identified by descriptions with reference to a map or plan.’
Lord Denning said that a third person can sue on a contract to which he is not a party, and referred to section 56 as a clear statutory recognition of this principle, with the consequence that Miller’s case was wrongly decided.
Tucker LJ, Somervell LJ, Denning LJ
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Law of Property Act 1925 78
England and Wales
Cited – Rogers v Hosegood ChD 1900
The vendors were partners in Cubitt and Co, a well-known firm of builders who had laid out land in Palace Gate, Kensington in building plots suitable for large private houses. In 1869 they twice sold and conveyed plots to the Duke of Bedford subject . .
Criticised – In re Miller’s Agreement, Uniacke v Attorney-General ChD 1947
Two partners had covenanted with a retiring partner that on his death they would pay certain annuities to his daughters. The Revenue claimed estate duty.
Held: The claim was rejected. The daughters were not parties to the agreement, and had no . .
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 – 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 . .
Criticised – Beswick v Beswick HL 29-Jun-1967
The deceased had assigned his coal merchant business to the respondent against a promise to pay andpound;5.00 a week to his widow whilst she lived. The respondent appealed an order requiring him to make the payments, saying that as a consolidating . .
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.
Updated: 22 December 2021; Ref: scu.245942