• In the case of Haywood v Brunswick building society 1881 8 Q.B.D 403, it was held that the assignee of the grantee of land is not liable where the land has been granted in fee in consideration of a rent charge and a covenant to build and repair the buildings exists.

Facts of the Case

  • This case concerns an action against a building society, the mortgages of certain land, upon a covenant to build and keep in repair houses erected upon the land.
  • By an indenture dated 17th May 1866, made between Charles Jackson and Edward Jackson, Charles granted a plot of land to Edward for an annual chief rent of 11l.
  • Edward also granted for himself, his heir’s executors, administrators, and assigns, coveted with Charles, his executors and assigns, that Edward, his heirs and assigns would pay Charles and co, this rent half yearly, and would erect and keep in good repair and when necessary, rebuild, messuages on the land of the value of double the rent.
  • In March of 1867, Charles conveyed to Haywood the use of Haywood, his heirs, and assigns, the said chief rent and all powers and remedies in respect thereof, together with the benefit of the said covenant.
  • Edward assigned his interest to MacAndrew.
  • MacAndrew by deed dated 8th September 1871, mortgaged the premises to certain persons described as the trustees of the Brunswick building society in fee subject to the rent charge and covenants aforementioned.
  • The building society was later incorporated under the Act of 1874 and under the mortgage deed took possession of the land and the buildings on it.  
  • The issue arose whether the building society was liable upon the covenant to keep the buildings under repair. No question arose as to their liability to pay the chief rent as the arrears were paid into court in the action.
  • The case was tried without a jury at the Manchester Winter 1881, with Stephen J reversing it for further consideration.

Issues in Haywood v Brunswick building society 1881 8 Q.B.D 403

  • Did the covenant run with the land?
  • Did the defendants have to perform the covenant?

Held by Court of Appeal

  • Brunswick Building Society held not liable.

Cotton LJ

  • The covenant to repair is positive and not restrictive meaning the burden did not pass with the land to Brunswick Building Society.
  • “At p.788 Lord Cottenham says, “If an equity is attached to the property by the owner, no one purchasing with notice of that equity can stand in a different situation form the party from whom he purchased”. This lays down the real principle that an equity attaches to the wonder of the land. it is possible that the doctrine might be extended to cases where there is an equitable charge which might be enforced against the land, but it is not necessary to decide that now; it is enough to say that with that sole exception the doctrine could not be farther extended. The covenant to repair can only be enforced by making the owner put his hand into his pocket and there is nothing which would justify us going that length. P.409

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