Restrictive covenants — Nineteenth-century covenants restricted development — Whether covenants still enforceable — Declaration sought under section 84(2) of the Law of Property Act 1925 — Whether covenants annexed to the covenantee’s land by the conveyance — Whether covenants annexed by the Conveyancing Act 1881 — Declaration granted
The first plaintiffs, who have contracted to purchase some land from the second plaintiffs, Haringey London Borough Council, sought a declaration under section 84(2) of the Law of Property Act 1925 as to whether certain restrictive covenants were still enforceable and burdened the land. The covenants are contained in a conveyance of the land of 1894; the vendor at that time, as covenantee, retained some other land. The plaintiffs contended that for restrictive covenants to become annexed to the title of the land of the covenantee, and for the benefit of the covenants to pass to the covenantee’s successors in title, it must be shown that it was the intention of the original parties that the benefit should be so annexed. In the present case, that intention could not be construed from the express words of the covenant or the surrounding circumstances. The plaintiffs also contended that the covenants were not annexed by virtue of the decision in Federated Homes Ltd v Mill Lodge Properties Ltd [1980] 1 WLR 594; [1980] EGD 841.
Held A declaration was granted that the restrictive covenants had not been annexed to the title of the original covenantee and that they were no longer enforceable.
1. A covenant will be annexed to land only if an intention to annex the benefit to the retained land can be established. Intention must be construed from the words of the covenant; express words were desirable, and in their absence the surrounding circumstances could be considered.
2. In the present case the surrounding circumstances at the time of the 1894 conveyance showed that it had not been the intention of the beneficial owner to retain any land; the evidence was that he had intended to sell the retained land. As there was no indication in the wording of the covenants that they were made with the vendor qua owner of the retained land, and as there was no evidence from the surrounding circumstances that the covenants were intended to be annexed to the retained land, the covenants were not now enforceable by successors in title to that retained land.
3. The covenants had not been annexed to the title of the retained land by virtue of the decision in Federated Homes Ltd v Mill Lodge Properties Ltd [1980] 1 WLR 594. That case was a decision on section 78 of the Law of Property Act 1925, the Court of Appeal deciding that a change of the wording of section 58 of the Conveyancing Act 1881, its statutory precursor, had the effect of causing post-1925 covenants to be statutorily annexed in most cases. In the present case, the covenants were made before 1926 and the Conveyancing Act 1881 was still in force. Unlike section 78 of the 1925 Act, section 58 of the 1881 Act referred to “heirs and assigns” rather than “successors in title”; section 58 was therefore more restricted in its effect than section 78, and it did not annex the benefit of the covenants in the present case.
Reid v Bickerstaff
[1909] 2 Ch 305 and
Shropshire County Council v Edwards (1982) 46 P & CR 270 considered.
Gavin Lightman QC and Elizabeth Jones (instructed by Denton Hall Burgin & Warrens) appeared for the plaintiffs; and Anthony Scrivener QC and Geoffrey Stephenson (instructed by the solicitor to Enfield London Borough Council) appeared for the defendants.