London County Council v Allen
A restrictive covenant can be enforced in equity against a successor only if the covenantee retains land benefited by the covenant.
Facts
Mr Allen, a builder, covenanted with the London County Council not to build on a particular plot of land, as a condition of the council's approval of a new street layout. The council did not own any land near the plot. Mr Allen later sold the plot to Mrs Allen, who built houses on it. The council sought to enforce the covenant against her.
Legal principle
The Court of Appeal held that the covenant could not be enforced against Mrs Allen. Buckley LJ said that the doctrine of Tulk v Moxhay is an extension in equity of the doctrine of negative easements, so it requires that the covenantee should retain land that is benefited by the covenant. Since the council did not own any land benefited by the covenant, the burden could not run to a successor. Local authorities now have statutory powers to enforce certain covenants without holding land.
Related cases on freehold covenants
- Alexander Devine Children's Cancer Trust v Housing Solutions Ltd [2020] UKSC 45, [2020] 1 WLR 4783
- Austerberry v Oldham Corporation (1885) 29 Ch D 750
- Re Ballard's Conveyance [1937] Ch 473
- Bath Rugby Ltd v Greenwood [2021] EWCA Civ 1927
- Crest Nicholson Residential (South) Ltd v McAllister [2004] EWCA Civ 410, [2004] 1 WLR 2409
- Elliston v Reacher [1908] 2 Ch 374
- Federated Homes Ltd v Mill Lodge Properties Ltd [1980] 1 WLR 594
- Halsall v Brizell [1957] Ch 169
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