Spencer's Case
The burden of a leasehold covenant that touches and concerns the land passes to an assignee of the lease, but at common law a covenant about something not yet in existence bound an assignee only if assigns were mentioned.
Facts
A tenant covenanted with his landlord, for himself, his executors and administrators, to build a brick wall on part of the land let. The covenant did not mention assigns. The tenant assigned the lease, and the assignee assigned it again. The wall was never built, and the landlord sued the final assignee for breach of the covenant.
Legal principle
The court held that the assignee was not liable. Where a covenant touches and concerns the land, it runs with the land and binds an assignee of the lease, because there is privity of estate between the landlord and the assignee. But where the covenant relates to something not yet in existence, such as a wall to be built, the assignee is bound only if the covenant expressly mentions assigns. The second rule was abolished by section 79 of the Law of Property Act 1925, and for leases granted from 1996 the whole subject is now governed by the Landlord and Tenant (Covenants) Act 1995.
Related cases on leasehold covenants and forfeiture
- Akici v LR Butlin Ltd [2005] EWCA Civ 1296, [2006] 1 WLR 201
- Avonridge Property Co Ltd v Mashru [2005] UKHL 70, [2005] 1 WLR 3956
- Billson v Residential Apartments Ltd [1992] 1 AC 494
- City of London Corporation v Fell [1994] 1 AC 458
- Co-operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd [1998] AC 1
- Duke of Westminster v Guild [1985] QB 688
- Expert Clothing Service & Sales Ltd v Hillgate House Ltd [1986] Ch 340
- Glass v Kencakes Ltd [1966] 1 QB 611
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This summary is for study and revision and is not legal advice. Although our case summaries are checked for accuracy, we do not guarantee that they are free from errors or omissions. Always read the full judgment for the court's reasoning.
