It is trite law that, in order to enforce a covenant affecting land, a person who is not the original covenantee must show that he is entitled to the benefit of it. The benefit of covenants may pass at law or in equity through a chain of assignments. It may also pass where land has been sold off under a building or development scheme, or because the benefit of the covenants has been annexed to the land that benefits from them.
The benefit of covenants made on or after 1 January 1926 may be statutorily annexed to land by section 78 of the Law of Property Act 1925. Statutory annexation occurs, unless a contrary intention is expressed, but only where the land benefited by the covenants can be identified from a description, plan or other reference in the document itself or from other admissible evidence: Crest Nicholson Residential (South) Ltd v McAllister [2004] 2 EGLR 79.
In the absence of a definitive plan, it is not always easy to identify land that benefits from restrictive covenants. Trustees of the Coventry School Foundation v Whitehouse [2012] EWHC 2351 (Ch) sheds valuable light on the lengths to which the courts might expect, or allow, landowners to go in order to so.
The owners of land burdened by covenants imposed in 1931 claimed that they were unenforceable because it was difficult to identify the land in question. The covenants prohibited any use that might cause any “nuisance damage annoyance or disturbance to the vendors and their successors in title or their lessees or tenants or which may tend to depreciate or lessen the value of the vendors’ adjoining or adjacent property”.
It was clear, from the 1931 conveyance, that the covenants were imposed for the benefit of land to the north and north-east of the servient land. However, the owners of the servient land claimed that the boundaries of the dominant land were uncertain or ambiguous. Consequently, it was not easy to ascertain the extent of that land.
The judge ruled that it is a matter of fact and degree in each case whether the identity of dominant land is easily ascertainable. If a conveyance or transfer leaves the dominant land undefined, the other evidence to which resort may be had must be readily available or accessible and of such evidential quality as to eliminate uncertainty or ambiguity.
In this case, the trail was short, clear and well-marked. It had not been difficult or impossible to follow and the information revealed at the end of it was free from uncertainty or ambiguity.
The original covenantee was still in existence and was able to direct the parties to records (which included an estate book of maps and particulars dating back to 1808 and a cropping book dating back to 1934), in the hands of the City Archivist. The judge accepted that it was not easy to ascertain whether the original covenantee had owned additional land, which was not mentioned in these records, which was also intended to benefit from the covenants. However, this was not a reason for concluding that land, which was intended to benefit and which was easily identifiable, was somehow tainted by that uncertainty and was therefore to be deprived of the benefit of the covenants. Consequently, the judge refused to declare that the covenants were unenforceable.
Allyson Colby, property law consultant
