• In the case of Crest Nicholson Residential South Ltd v McAllister 2004 1 WIR 2409, concerning multiple conveyances it was held on appeal that to be entitled to the benefit of a covenant it must be annexed to the land.

Facts of the Case

  • Crest Nicholson Residential (Appellant) appealed against an order to determine the extent to which land, in respect of the appellant being the purchaser under a conditional contract of which McAallister (respondent) claimed on cross appeal to be entitled to.
  • Two brothers bought an estate in land and formed a company to sell off the land in plots. By three conveyances executed between 1928 and 1930 three individual purchasers each acquired a plot and with three further conveyances in 1933, acquired further plots adjacent with his original plot.
  • All three conveyances contained a covenant providing that “the premises shall not be used for any purpose other than those of or in connection with a private dwelling house or for professional purposes”. All but one contained a further covenant “no dwelling house or other building shall be erected on the land herby conveyed unless the plans drawing, and elevations shall have been previously submitted to and approved in writing by the vendor, but such approval shall not be necessary or vexatiously withheld”.
  • Three of the conveyances contained the express words of annexation; “for the benefit of the property… aforesaid belonging to the company or the part thereof for the time being remained unsold”.
  • Each of the purchasers built substantial dwelling houses on the enlarged plot. By a conveyance executed in 1936 another plot was sold, subject to the covenants in a different form on which three further dwelling houses were built.
  • The brother later died, and the company was dissolved.
  • In 2000 C made a conditional contract to buy part of the garden in each of the four houses, together with the whole plot on which the firth house was built to form a single unit which the purchasers proposed to build new dwelling houses.
  • D claimed as successor in tittle of the original vendor to enforce the covenants.
  • C brought an action for decelerations that the covenants did not restrict the covenantors and their successors from using the premises conveyed by each conveyance for the building of new dwelling houses.
  • The trial judge found that the benefit of the covenants in the first six conveyances was annexed to D’s land. C appealed and the D cross-appealed. At the appeal hearing the C was permitted to argue that the covenants were not annexed to D’s land.

Issues in Crest Nicholson Residential South Ltd v McAllister 2004 1 WIR 2409

  • In this case the issues surrounding the covenants was whether the covenants were annexed to the D’s land and that therefore D was entitled to the benefit of the covenants in the first six conveyances in 1936.

Held by Court of Appeal

  • The appeal was allowed, with it being held that the benefit of the covenants was not annexed to the land owned by M.

Chadwick LJ:

  • Chadwick assessed the benefitting land in relation to the covenants.
  • The appeal was allowed with no order on the cross-appeal that, although section 78(1) of the Law of Property Act 1925 which deemed a restrictive covenant to be made with the successors in title of the covenantee rendered it unnecessary to state in the conveyance that the covenant was to be enforceable by persons deriving title under the covenantee or his successors in title.
  • The land must be identified ‘from a description, plan or other reference in the conveyance itself, but aided, if necessary, by external evidence to identify the land so described, depicted or otherwise referred to”.  para-G 2429