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 Following this, the plaintiff claimed that the restrictions that were previously attached to the property were no longer applicable.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.
Decision/Outcome
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.
Updated 21 March 2026
This case summary accurately reflects the decision in Re Ballard’s Conveyance [1937] Ch 473. The core principle — that a restrictive covenant will not be validly annexed to the benefit of land where it is expressed to apply to the entirety of an estate but cannot, as a matter of practicality, benefit the whole of that land — remains good law. However, readers should be aware of two important developments that affect the wider context in which this case sits. First, section 78 of the Law of Property Act 1925, as interpreted by the Court of Appeal in Federated Homes Ltd v Mill Lodge Properties Ltd [1980] 1 WLR 594, significantly altered the law on automatic annexation, meaning that in many modern cases annexation will occur by statute without the need for express words. Re Ballard’s Conveyance predates this development and was decided on the basis that express annexation was required. Second, Crest Nicholson Residential (South) Ltd v McAllister [2004] EWCA Civ 410 clarified that section 78 does not cure a failure to sufficiently identify the benefited land, which aligns with the reasoning in Re Ballard’s Conveyance. The case therefore retains its authority on the specific point that a covenant expressed to benefit land that it cannot realistically benefit in its entirety will fail annexation, but students should read it alongside the section 78 case law to understand the current law on annexation of restrictive covenants.
