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Benefit of covenants

A person cannot enforce a restrictive covenant unless he has "the benefit of the covenant". If the parties are the original parties to the covenant there is no problem. The covenant can be enforced like any other contract. However, the covenant may have been entered into many years ago and the land may have passed through different ownerships. The person who is now the owner of the land with the benefit of the covenant may wish to enforce it. He may only do so if the benefit of the covenant has been successfully passed to him. There are three methods by which the benefit may be transferred:
  • Annexation.
  • Assignment.
  • Scheme of development
This page offers an explanation of each of these three methods and sets out details of some recent cases, in particular the very important case of Crest Nicholson Residential (South) Ltd v McAllister.

Annexation

This is the most common method by which a person will seek to show that he has the benefit of the covenant. The elements are as follows:
  • The person claiming the benefit must have an interest in the land to which the covenant refers.
  • The covenant must relate to ("touch and concern") the land retained by the covenantee (the benefited land).
  • The land which is intended to be benefited must be easily ascertainable, from a description, plan or other reference in the conveyance itself, but aided if necessary, by external evidence to identify the land so described. This last element is important and has been re-inforced by the recent case of Crest Nicholson Residential (South) Ltd v McAllister (see below).
(Note the following exception: Section 106 of the Town and Country Planning Act 1990 allows a land owner to enter into "a planning obligation" with a local planning authority restricting development etc. The obligation will be enforceable even though the planning authority does not own any adjacent land).


Pre 1/1/1926 covenants
    "In covenants made before 1926 it was necessary to show, by construing the instrument in the light of the surrounding circumstances, that annexation to the covenantee's retained land (or some part of it) was intended. Express words of annexation were not required." If on the construction of the instrument creating the restrictive covenant, both the land which i ... THIS IS AN EXTRACT OF THE FULL TEXT. TO GET THE FULL TEXT, SEE BELOW

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