Facts
The Mitchell brothers and their company sold plots on the Fee Farm Estate with restrictions on building and use. Decades later, Crest Nicholson contracted to buy land on the estate for redevelopment, intending to build five additional houses and replace one existing house. Mrs McAllister, who owned another plot, argued that the development would breach restrictive covenants she was entitled to enforce. At first instance the building restriction was held to be spent, but the judge held that the use restriction limited the relevant land to a single private dwelling per plot.
Issue
Was the benefit of the restrictive covenants annexed to Mrs McAllister’s land under section 78 of the Law of Property Act 1925?
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Decision
The Court of Appeal allowed Crest Nicholson’s appeal. Section 78 can annex the benefit of a covenant to land without an express assignment, but the land intended to benefit must be readily ascertainable. The conveyance need not identify it by name or plan if its description allows it to be identified with external evidence. These conveyances did not identify Mrs McAllister’s property as land entitled to the benefit. The court declared that she could not enforce the covenants in the six relevant conveyances and made no order on the cross-appeal. It was unnecessary to decide the effect of the restrictions.
Reported citations: [2004] 1 WLR 2409, [2004] WLR 2409, [2004] 2 All ER 991, [2005] 3 EGLR 67, [2005] 39 EG 138
Source: Full judgment
