Roake v Chadha
Section 78 does not annex the benefit of a covenant where the covenant itself shows that the benefit is not to pass unless expressly assigned.
Facts
A covenant restricting the building of more than one house on a plot was made in 1934, and stated that it would not enure for the benefit of any owner or subsequent purchaser of land on the estate unless the benefit was expressly assigned. The claimants, who owned neighbouring land on the estate, sought to enforce the covenant against Mr Chadha, who wanted to build a second house. The benefit had not been expressly assigned to them, but they argued that it had been annexed to their land under section 78 of the Law of Property Act 1925.
Legal principle
Judge Paul Baker QC held that the claimants could not enforce the covenant. Section 78 did not operate to annex the benefit of the covenant where the covenant itself, properly construed, showed that the parties intended it not to be annexed. The court must construe the instrument as a whole to see whether the benefit was to be annexed. The express words requiring assignment prevented automatic annexation under Federated Homes v Mill Lodge Properties.
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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