The benefit of a covenant that touches and concerns land belonging to the covenantee may run in equity in one of three ways: by express or statutory annexation, by an unbroken chain of equitable assignments, or through local law in the form of a building or development scheme.
Sutton and East Surrey Water Plc v Kilby [2017] UKUT 248 (LC) concerned restrictive covenants imposed in 1910 to ensure that land was used to store water in a reservoir, which stood in the way of a residential development. The water company asked the tribunal to modify or discharge the covenants, but was met with a series of objections from the owners of properties in the immediate vicinity, even though they did not have any specific evidence that they were entitled to enforce them.
Given the absence of a chain of assignments of the benefit of the covenants, and the singularity of the covenant to use the land to create a reservoir, the objectors tried to persuade the tribunal that the benefit of the covenants had been annexed to their properties. But statutory annexation, pursuant to section 78 of the Law of Property Act 1925, was inapplicable because section 78 applies only to covenants made on or after 1 January 1926. And section 58 of the Conveyancing Act 1881, which was in force in 1910, did not annex the benefit of the covenants to the covenantee’s land: J Sainsbury Plc v Enfield LBC [1989] 1WLR 590.
Consequently, the objectors needed to satisfy the tribunal that the benefit of the covenants had been annexed to their properties by the wording used in 1910. However, the only information about the covenants was to be found in the charges register for the servient tenement kept by the Land Registry. And, although the register included the terms of the restrictive covenants themselves, there was nothing to show that the water company had entered into them for the benefit of an identified area of land.
It did not help the objectors’ case that one of the covenants appeared to benefit the covenantee personally. The covenant in question prohibited the construction of a recorder house except in accordance with previously approved elevations. Such approval was to be provided by “William Webb of Upper Woodcote House, Purley, Surrey Gentleman” – and the tribunal considered that this meant Mr Webb personally.
On the other hand, one of the covenants did stipulate that nothing was to be done on the servient land “which shall become a nuisance or annoyance to the said William Webb or the adjoining owners”. But the tribunal considered that the covenantee could simply have been seeking to protect himself against complaints from his neighbours.
Furthermore, Crest Nicholson Residential (South) Ltd v McAllister [2004] 2 EGLR 79 was authority for the proposition that land benefited by covenants must be identifiable from a description, plan or other reference in the document itself, or from other admissible evidence. And there was no evidence of the extent of the land in the neighbourhood owned by William Webb in 1910. Consequently, none of the objectors had the standing to object to the application to modify or discharge the covenants.
Allyson Colby is a property law consultant
