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Published online by Cambridge University Press: 16 January 2009
The law about covenants running with land is once again behind the times. It is undoubtedly in need of statutory reform. It is also, perhaps, an apt subject for this jubilee issue. For among the articles published in the earlier years of this Journal few can be better known, and none can have given more needed help, than Professor Bailey's The Benefit of a Restrictive Covenant, in which the complexities of an excessively intricate topic of real property law were analysed and expounded with great care and clarity. Published in 1938, it remains a source of valuable guidance to-day. In the meantime there have been many decisions, and there are now proposals for legislation. But in the following pages the reader will not find an objective and comprehensive survey comparable to Professor Bailey's. It is proposed to discuss only one or two controversial aspects and the questions of legal policy bound up with them.
1 (1938) 6 C.L.J. 339.
2 Report of the Committee on Positive Covenants Affecting Land, 1965, Cmnd. 2719Google Scholar; referred to subsequently as “Wilberforce Report.” Proposals for implementing parts of the Report are contained in the Law Commission's Published Working Paper No. 36, Appurtenant Rights (July, 1971), pp. 19et seq.Google Scholar
3 Wilberforce Report, paras. 5, 7.
4 Attributed to Harman J.: see (1951) 67 L.Q.R. at p. 506.
5 (1848) 2 Ph. 774.
6 [1957] Ch. 169. See [1957] C.L.J. 35.
7 See Megarry & Wade, Real Property (3rd ed., 1966), p. 758; referred to subsequently as “M. & W.”
8 Para. 42 and Appendix B.
9 For recent legislation in Australia, Canada, Ceylon, Jamaica and Singapore, see Annual Survey of Commonwealth Law [1968] p. 392, [1969] p. 342Google Scholar, [1970] p. 584. For the U.S.A. see Powell, Real Property, Ch. 54.
10 Wilberforce Report, paras. 39, 40.
11 Ibid., para. 39.
12 Whatman v. Gibson (1838) 9 Sim. 196, antedated Tulk v. Moxhay by a decade.
13 The rules laid down in Elliston v. Reacher [1908] 2 Ch. 374Google Scholar, affirmed [1908] 2 Ch. 665, are modified in Baxter v. Four Oaks Properties Ltd. [1965]Google Scholar Ch. 816 (holding that the estate need not have been laid out in lots for sale) and Re Dolphin's Conveyance [1970]Google Scholar Ch. 654 (holding that neither a common vendor nor lotting were necessary).
14 Para. 10.
15 Para. 13.
16 Ibid., para. 6.
17 Para. 20.
18 Ibid., para. 24.
19 1956, Cmnd. 9825 (Chairman, Mr. Justice Roxburgh), especially para. 22.
20 Wade, H. W. R., “Land Charge Registration Reviewed” [1956] C.L.J. 216.Google Scholar
21 Land Charges Act 1925, ss. 10 (1) Class D (ii), 13.
22 Cmnd. 9825, para. 11.
23 Wilberforce Report, para. 27.
24 Paras. 15, 16.
25 Para. 17. The Law Commission's Working Paper (above, n. 2), pp. 64, 84, is apparently, though less clearly, to the same effect.
26 Para. 15.
27 See Preston & Newsom, Restrictive Covenants (4th ed., 1967), preface. It is there explained how the over-complex case-law used to clear titles more thoroughly, though more arbitrarily, than did the statutory machinery; and how the right remedy is to improve the statutory machinery.
28 See, e.g., M. & W., p. 554 et seq.
29 Ives (E.R.) Investment Ltd. v. High [1967] 2 Q.B. 379 at p. 396Google Scholar (Lord Denning M.R.). The Court of Appeal held that an easement of a kind capable of existing only in equity before 1926 was not an “equitable easement” within the meaning of the Land Charges Act 1925, s. 10 (1) Class D (iii), in order to avoid defeating the claim of the owner who had failed to register. For a later case where the court applied the Act and accepted the injustice, see below, n. 58.
30 Wilberforce Report, para. 15.
31 The Prior's Case (1368) Y.B. 42 Edw. 3, Hil.pl. 14: Smith's Leading Cases, 13th ed., i, 55.
32 Smith v. River Douglas Catchment Board [1949] 2 K.B. 500.Google Scholar
33 See Rogers v. Hosegood [1900] 2 Ch. 388 at p. 396Google Scholar (Farwell J.). The law is now statutory: Law of Property Act 1925, s. 76 (6).
34 See Westhoughton U.D.C. v. Wigan Coal & Iron Co. Ltd. [1919] 1 Ch. 159Google Scholar (covenant not to let down surface of land). Swinfen Eady M.R. well explains (at p. 170) the simplicity of the rule at law: “the covenant is made with persons who had an interest in the land, the surface to which the covenant refers, and the covenant touches and concerns the land. The covenant is, therefore, to be deemed to be annexed to the land; the benefit of it runs at law with the land; and the assignee can sue upon it. See Rogers v. Hosegood.”
35 Renals v. Cowlishaw (1879) 11 Ch.D. 866 at p. 868 (James L.J.); Re Union of London and Smith's Bank Ltd.'s Conveyance [1933] Ch. 611 at p. 625 (Bennett J.)Google Scholar; Newton Abbot Co-operative Society Ltd. v. Williamson & Treadgold Ltd. [1952] 1 Ch. 286 at p. 289 (Upjohn J.)Google Scholar; (1968) 84 L.Q.R. at p. 24 (P. V. Baker). But these may be merely verbal differences, since very loose expressions may be held to “identify” or “define” the benefited land, as in Rogers v. Hosegood, discussed next.
36 [1900] 2 Ch. 388.
37 [1933] Ch. 611 at p. 631. This passage contains the same difficulty as that mentioned in n. 41, below.
38 (1968) 84 L.Q.R. at p. 29. See Mr. Hayton's article (n. 77) at p. 567.
39 [1933] Ch. 611 at p. 625; see n. 35, above.
40 Preston & Newsom, Restrictive Covenants (2nd ed., 1955), pp. 402–448. This criticism does not appear in the 4th ed. (1967), p. 32, which accepts the opinion of Wilberforce J.: see below n. 49. The learned author, Mr. G. H. Newsom Q.C., appeared for the plaintiffs in the Marten case, thus successfully opposing his own criticism. Another critic is Mr. D. J. Hayton (post, n. 77).
41 Sir Lancelot Elphinstone, “Assignment of the Benefit of Covenants Affecting Land” (1952) 68 L.Q.R. 353. The argument of this article is not easy to follow. Its thesis (at p. 358) seems to be that assignment of the benefit should be allowable only where the identity of the dominant land is shown with reasonable certainty by the instrument creating the covenant. But in that case the benefit would be annexed, and assignment would be unnecessary, except in the rare cases exemplified by Stilwell v. Blackman [1968] Ch. 508Google Scholar, as to which see n. 56, below.
42 See Sir L. Elphinstone's article (preceding note) at p. 361.
43 Newton Abbot Co-operative Society Ltd. v. Williamson & Treadgold Ltd. [1952] Ch. 286.Google Scholar
44 [1962] Ch. 115.
45 Ibid. at p. 133.
46 Ibid. at. p. 131. The requisite evidence may, of course, not be forchcoming, as in Reid v. Bickerstaff [1909] 2 Ch. 305.Google Scholar
47 Ibid. at p. 134.
48 M. & W. at p. 765.
49 I am grateful to Mr. P. v. Baker for pointing out my mistake in ignoring this point in M. & W.P. 765: see (1968) 84 L.Q.R. at p. 30. But Mr. Baker himself ignores Wilberforce J.'s reasoning, which if accepted carries the case much further than he maintains, and indeed strengthens his own argument. See also Preston & Newsom, Restrictive Covenants (4th ed.), p. 32, submitting that “following very full argument expressly addressed to this particular point, the judgment of Wilbeforce J. in Marten's case is definitive” on the question for which Mr. Baker says it is no authority.
50 See esp. at. p. 130, lines 3–6, prefacing five pages of discussion of the conditions under which “the benefit of restrictive covenants can pass to persons other than the original covenantee, even in the absence of annexation.”
51 At pp. 134–135.
52 Hints to the same effect abound in the reports: see, e.g., Hall V.C.'s reference in Renals v. Cowlishaw (1878) 9 Ch.D. 125 at p. 129 to “the expressed or otherwise apparent purpose or object of the covenant, in reference to its being intended to be annexed to other property.” See also Collins L.J. in Rogers v. Hosegood [1900] 2 Ch. 388 at p. 408;Google ScholarVaughan-Williams, L.J. in Formby v. Barker [1903] 2 Ch. 539 at p. 550;Google Scholar and cf. Harman, L.J. in Radstock Co–operative and IndustrialSociety Ltd. v. Norton–Radstock U.D.C. [1968] Ch. 605, at pp. 627–628:Google Scholar “the covenant cannot be enforced, in my opinion, as a restrictive covenant, not being annexed to any particular land of the lessor either expressly or by implication.” (Italics supplied.)
53 Re Dolphin's Conveyance (above, n. 13). See similarly Collins L.J. in Rogers v. Hosegood (above, n. 52): M. & W., p. 766.
54 London and South Western Rly. v. Gomm (1882) 20 Ch.D. 562 at p. 583.
55 The Benefit of Restrictive Covenants (1968) 84 L.Q.R. 22 at p. 29.Google Scholar See similarly Mr. Hayton's article (post, n. 77) at p. 543.
56 For the problem of the part and the whole, in which the decision have attained a more than Aristotelian abstraction, see the valuable discussion in Mr. Baker's article (preceding note). Even in this welter of unnecessary technicality, however, the tide is running in favour of successors in title to the benefit. Stilwell v. Blackman [1968] Ch. 508Google Scholar at least allows assignment of the benefit with part of the benefited land, even though the benefit has previously been annexed to the whole of it only. But the restrictive notion of annexation to the whole and not to the component parts is justly critcised by Mr. Baker. It appears to have been invented by Clauson, J. in Re Ballard's Conveyance [1937] Ch. 473Google Scholar, without it having occurred to counsel: Preston & Newsom, Restrictive Covenants (4th ed.), preface.
57 See above, n. 24.
58 Shiloh Spinners Ltd. v. Harding [1971] 3 W.L.R. 34.Google Scholar This case makes one think that the defects of the Land Charges Act 1925 were understated in the article referred to in n. 20, above.
59 Early editions of Hood & Challis. Conveyancing & Settled Land Acts (e.g., 3rd ed., 1889, p. 135) say that it would be absurd if the provision (then in its 1881 form) were not subject to contrary intention. This seems obvious. But why then was the mistake not rectified in the 1925 version, so as to agree with s. 79 which was added in 1925? The point is ignored in Hood & Challis, Property Acts (8th ed., 1932), p. 165,Google Scholar and in Wolstenholme & Cherry, Conveyancing Statutes (12th ed., 1932), pp. 358–359.Google Scholar
60 Forster v. Elvet Colliery Co. Ltd. [1908] 1 K.B. 629 (affirmed asGoogle ScholarDyson v. Forster [1909] A.C. 98Google Scholar ); Westhoughton U.D.C. v. Wigan Coal & lron Co. Ltd. [1919] 1 Ch. 159Google Scholar; Re Ecclesiastical Commissioners for England's Conveyance [1936] Ch. 430.Google Scholar
61 See the Forster case (preceding note), a decision on the version of 1881.
62 Law of Property Act 1925, ss. 141, 142.
63 Spencer's Case (1583) 5 Co. Rep. 16a; the Forster case (n. 60, above). This is an essential condition for the running of the benefit with land, whether free–hold or leasehold: Rogers v. Hosegood [1900] 2 Ch. 388 at p. 395.Google Scholar The expression must be used in some different sense in Dartstone Ltd. v. Cleveland Petroleum Co. Ltd. [1969] 1 W.L.R. 1807.Google Scholar where pennycuick J. held that a covenant did not touch or concern the benefited land but nevertheless ran with it.
64 Above, n. 36.
65 Some Problems of the Law Relating to Restrictive Covenants (1941) 57 L.Q.R. 203 at p. 205.Google Scholar
66 Preston & Newsom, Restrictive Covenants (4th ed., 1967). do not mention the question. All the decided cases are silent, even those where the statute would seem most apposite, e.g., Shayler v. Woolf [1946] Ch. 320.Google Scholar
67 (1878) L.R. 9 Ch.D. 125; (1879) L.R. 11 Ch.D. 866.
68 The sidenotes of ss. 58 and 59 were accidentally transposed.
69 In The Prior's Case (n. 31, above), as related in Spencer's Case (n. 63, above). the covenantee was tenant in fee simple but his successor, the successful plaintiff, was tenant in tail. The supposed restriction was held to have been removed by s. 78: Smith v. River Douglas Catchment Board [1949]Google Scholar 2 K.B. 500—a much more daring interpretation of the section than that advocated here.
70 (1938) 6 C.L.J. at p. 354.
71 (1941) 57 L.Q.R. at p. 204 (misquoting s. 58 of the Act of 1881 as s. 53).
72 These words were inserted in the version of 1925.
73 Rogers v. Hosegood [1900] 2 Ch. 388 at p. 396Google Scholar; so interpreting Renals v. Cowlishaw (n. 67, above).
74 s. 58 (as it became) was inserted by amendment in the House of Lords in Committe of the Whole House on 9 March 1880: Lords Journals, Vol. cxii, p. 71; but no record was made. I am indebted to the Clerk of the Records, House of Lords, for confirming this last fact.
75 The first three editions of Hood & Challis, Conveyancing & Settled Land Acts, say that the section appears to be founded upon some misapprehension. This disparaging remark was dropped in the 4th ed. (1895).
76 E.g. Goldberg v. Edwards [1950] Ch. 247.Google Scholar
77 Hayton, D. J., Restrictive Covenants as Property Interests (1971) 87 L.Q.R. 539 at p. 570.Google Scholar
