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Re Ballard's Conveyance [1937] Ch 473

Property law – Restrictive covenants

Facts

The vendor included a covenant on the conveyance of property which defined the vendor as successors of the estate but imposed a restriction on the erection of buildings on the property, except for garden or farm buildings that were not built from red brick, to ‘any part of the above mentioned estate’. The estate was 1,700 acres and the restrictions in the covenant could not be applied to the entirety of the estate. As a result of this, the estate was subsequently conveyed without reference to the restrictions. Following this, the plaintiff claimed that the restrictions that were previously attached to the property were no longer applicable.

Issue

The court was required to consider whether the covenant touched or concerned the land in question and whether the covenant could be annexed to the property. This would enable the court to establish the area of the land that the restrictive covenant that was intended to apply to in the initial conveyancing.

Held

The court held that the benefit of the covenant was intended to be imposed across the entirety of the estate in question. However, the restrictions, in this case, were building restrictions and therefore this could not apply to the whole estate. Moreover, the court did not find that the covenant concerned or touched the relevant piece of land and it was deemed to have not been annexed to this in the conveyance. On this basis, the plaintiff could not take action and the property was deemed to no longer be affected by the restrictive covenants.


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