References: (1848) 2 Ph 774, [1848] 1 H & TW 105, [1848] 18 LJ Ch 83, [1848] 13 LTOS 21, [1848] 13 Jur 89, [1848] 41 ER 1143 LC, (1848) 11 Beavan 571, [1848] EWHC Ch J34, [1848] EngR 1005, (1848) 11 Beav 571, (1848) 50 ER 937, [1848] EngR 1059, (1848) 1 H & Tw 105, (1848) 47 ER 1345, [1848] EngR 1065, (1848) 41 ER 1143
Links: Bailii, Commonlii, Commonlii, Commonlii
Coram: Lord Cottenham LC, Knight Bruce LJ
Ratio:A, being seised of the centre garden and some houses in Leicester Square, conveyed the garden to B in fee, and B covenanted for himself and his assigns to keep the garden unbuilt upon.
Held: A purchaser from B, with notice of the covenant, was bound by it in equity, whether he was bound at law or not, and an injunction was granted to restrain him infringing the covenant. The equitable doctrine is that restrictive covenants follow the land to the new owner on notice. The subsequent owner must be found to have notice before he will be bound by the covenants.
The burden of a positive covenant will not run with the land. In order to bind a successor in title: 1) the covenant must be negative in substance 2) It must benefit the land of the covenantee, 3) The burden must be intended to run with the land, and 4) the successor must have notice of the covenant.
Lord Cottenham LC said: ‘It is said that the covenant being one which does not run with the land, this court cannot enforce it; but the question is, not whether the covenant runs with the land, but whether a party shall be permitted to use the land in a manner inconsistent with the contract entered into by his vendor, and with notice of which he purchased.’ and ‘if an equity is attached to the property by the owner, no one purchasing with notice of that equity can stand in a different situation from the party from whom he purchased.’
This case cites:
- Cited – Keppell -v- Bailey ChD (Bailii, [1834] EWHC Ch J77, (1834) 2 My & K 517, [1834] 39 ER 1042, Commonlii, [1834] EngR 193, (1834) Coop T Br 298, (1834) 47 ER 106, Commonlii, [1834] EngR 448, (1834) 39 ER 1042)
The court was asked whether the owner of land can burthen it in the hands of future owners by the creation of novel rights.
Held: Lord Brougham said: ‘It must not be supposed that incidents of a novel kind can be devised and attached to . . - Cited – Whatman -v- Gibson (, Commonlii, [1838] EngR 539, (1838) 9 Sim 196, (1838) 59 ER 333 (B))
A, the owner of a piece of land, divided it into lots for building a row of houses, and a deed was made between him of the one part and X and Y, (who had purchased some of the lots from him) and the several persons who should at any time execute the . . - Cited – The Duke of Bedford -v- The Trustees of The British Museum (Commonlii, [1822] EngR 457, (1822) 2 My & K 552, (1822) 39 ER 1055)
Where land is conveyed in fee, by deed of feoffment, subject to a perpetual ground rent, and the feoffee covenants for himself, his heirs and assigns, with the feoffor, the owner of adjoining lands, his heirs, executors, administrators, and assigns, . . - Cited – Mann -v- Stephens ([1846] EngR 921 (B), Commonlii, (1846) 15 Sim 377)
A. being seised in fee of a house and a piece of open land near to it, sold and conveyed the house to E, and covenanted, for himself, his heirs and assigns, with B., his heirs and assigns, that no building whatever should at any time thereafter be . .
(This list may be incomplete)
This case is cited by:
- Criticised – London County Council -v- Allen ([1914] 3 KB 642)
A landowner applied to the plaintiffs for their sanction to a new street scheme. It was given but subject to his covenant to keep certain land unbuilt upon. He gave the covenant. The plaintiffs themselves had no land in the area capable of . . - Considered – Patching -v- Dubbins ((1853) Kay 1, [1853] EngR 894, Commonlii, (1853) 69 ER 1)
The purchase-deed of a house in a terrace contained a covenant on the part of the vendor, unexplained by any recital, that no building should be erected on any part of the land of the vendor lying on the east side of the said terrace and opposite to . . - Considered – Child -v- Douglas ((1854) Kay 560, 23 LJ Ch 45, 22 LTOS 116, 17 Jur 1113, 2 WR 2, 69 ER 1)
. . - Cited – Crest Nicholson Residential (South) Ltd -v- McAllister CA (Bailii, [2004] EWCA Civ 410, Times 06-May-04, [2004] 1 WLR 2409, [2004] 2 All ER 991, [2004] 2 P & CR 486)
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 . . - Applied – Hemingway Securities Ltd -v- Dunraven Ltd and another ChD ([1995] 1 EGLR 61, (1995) 09 EG 322, Bailii, [1994] EWHC Ch 1, (1996) 71 P & CR 30)
The lease contained a covenant against sub-letting. The tenant created a sub-lease in breach of that covenant and without the consent of the landlord.
Held: The head landlord was entitled to an injunction requiring the sub-tenant to surrender . . - Cited – Abbey Homesteads (Developments) Limited -v- Northamptonshire County Council CA ([1986] 1EGLR 24)
Clause 1 of an agreement between a company and the District Council required that the land should be sold subject to the conditions restricting and regulating the development. A clause provided ‘An area of 1.3 hectares adjacent to the playing field . . - Cited – University of East London Higher Education Corporation -v- London Borough of Barking & Dagenham and others ChD (Bailii, [2004] EWHC 2710 (Ch), Times 03-Jan-05)
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 – Rhone and Another -v- Stephens HL (Independent 23-Mar-94, Times 18-Mar-94, [1994] 2 WLR 429, [1994] 2 AC 310, Bailii, [1994] UKHL 3, [1994] 2 All ER 65)
A house was divided, the house being retained along with the roof over the cottage, and giving a covenant to repair the roof on behalf of the owner of the house. The cottage owner sought to enforce the covenant against a later owner of the house. . . - Cited – London and South Western Railway Co -v- Gomm CA ((1882) 20 ChD 563)
A grant was given to repurchase property, but was void at common law for the uncertainty of the triggering event.
Held: The ‘right’ to ‘take away’ the claimants’ estate or interest in the farm was immediately vested in the grantee of the right . . - Cited – Noakes and Co Ltd -v- Rice HL ([1902] AC 24, Bailii, [1901] UKHL 3)
A charge on a public house provided that even after repayment of the principal, the owner continued to be obliged to purchase his beer from the brewery, and that any non-payment would be charged on the property.
Held: The clauses operated as a . . - Cited – Coles -v- Sims ([1854] EngR 103, Commonlii, (1854) 5 De G M & G 1, (1854) 43 ER 768)
. . - Cited – Taylor -v- Gilbertson ([1854] EngR 705, Commonlii, (1854) 2 Drew 391, (1854) 61 ER 770)
. . - Cited – Johnstone -v- Hall ([1856] EngR 336, Commonlii, (1856) 2 K & J 414, (1856) 69 ER 844)
. . - Cited – Hodson -v- Coppard ([1860] EngR 1088, Commonlii, (1860) 29 Beav 4, (1860) 54 ER 525)
. . - Cited – Heywood -v- Heywood RC ([1860] EngR 1155, Commonlii, (1860) 29 Beav 9, (1860) 54 ER 527)
. . - Cited – Earl of Zetland -v- Hislop HL (Bailii, [1882] UKHL 1, (1882) 9 R (HL) 40, (1881-82) LR 7 App Cas 427)
. .
(This list may be incomplete)
Last Update: 17-Jun-16
Ref: 181987