Published: Fri, 12 Oct 2018
Lord Northbourne v Johnston & Son  2 Ch 309
Property law – Restrictive covenant – Sale of land
CE owned the S estate and upon death, vested the estate to trustees on behalf of SJ. It was subsequently made into a building estate and the plots were sold with restrictive covenants, which required purchasers to uphold the character of the estate. The trustees sold some the estate to RF who agreed on covenant to build only the same style of houses on the estate. The trustees conveyed the remainder of the estate to SCJ but did not assign the benefit of the covenant. Later, N became entitled to the land by way of SCJ’s death, which included the assigning of the benefit of the restrictive covenants to N. J also became entitled to RF’s land by way of death. J subsequently began converting the house on that land into a shop which was in breach of the covenant previously agreed on the estate. N brought an action to restrict this breach.
It was important for the court to establish whether the plaintiff, N, had the legal rights to establish the covenant against the development of the shop on the land which was owned by the defendant. Specifically, this required the court to consider whether the covenant touched or concerned the land.
When the benefit of the covenant was assigned to N, this had reconstructed in N, the same legal rights that SCJ had originally possessed in the property when CE’s will was assigned. The covenants that were initially agreed were intended to affect the estate as a whole and the plaintiff had established this fact. As a result, an injunction was granted to prevent the defendant from further developing the shop.
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