Re Ballard's Conveyance
A covenant expressed to benefit the whole of a very large estate is not annexed to it if most of the estate is incapable of benefiting from it.
Facts
Land was sold subject to a restrictive covenant expressed to be for the benefit of the Childwickbury Estate, which covered about 1,700 acres. Only a small part of the estate was near the land and could benefit from the covenant. A successor sought to enforce the covenant.
Legal principle
Clauson J held that the benefit of the covenant was not annexed to the estate. Because most of the estate could not be touched or concerned by the covenant, it was not annexed to the estate as a whole, and the court would not sever the covenant so as to annex it only to the part capable of benefiting. The decision has been criticised, and draftsmen now routinely annex covenants to the whole or any part of the land, which avoids the problem.
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
- 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
- Haywood v Brunswick Permanent Benefit Building Society (1881) 8 QBD 403
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