• In the case of Newton Abbot Co Operative Society v Williamson and Treadgold Ltd 1952 Ch 286 it was argued whether the assignment of the benefit of covenants to the benefitting land of a covenant must be ascertainable.

Facts of the Case

  • In 1923, a vendor carried on the business of an ironmonger on the premises known as Devonia of which she became the owner in fee simple, conveyed property opposite to those premises to a purchaser and the conveyance contained a covenant by the purchaser not to carry on the business of an ironmonger on the premises. The purchaser at the time was carrying on the business of a grocer on part of the premises.
  • Devonia devolved, under the will of the vendor or her son and the executors assented in writing to the vesting of Devonia in him but there was never any assent in writing by them in respect of the benefit of the restrictive covenant.
  • In 1948, the vendors son assigned the business of an ironmonger carried on by him at Devonina to a co-operative society together with the benefit of the restrictive covenant and after granted a lease of Devonia to that society for 21 years.
  • After that year, the society became amalgamated with the plaintiff society.
  • In 1950, the owners and occupiers of the premises conveyed by the convenance in 1923 who had acquired them in 1947, began in 1950 to expose for sale on those premises’ articles of ironmongery and hardware and in 1951 C began an action against them to enforce the restrictive covenant.

Issues in Newton Abbot Co Operative Society v Williamson and Treadgold Ltd 1952 Ch 286

  • The issues in the case concern whether C was able to enforce the covenant against D to hold that the covenant was of benefit to the land and ascertainable.

Held by High Court (Chancery Division)

  • C was able to enforce the covenant against D

Upjohn J

  • Here the assignment of benefit was considered. For an assignment to be effective, it was held that the land must be capable of being benefitted by the covenant and that the land had to be ascertainable. Upjohn explained that for land to be ascertainable, the land need not be referred to in the deed itself if it can be identified from its surrounding circumstances.
  • “It is plain, however, from these and other cases, and notably that of Renals v. Cowlishaw,  that if the restrictive covenant be taken not merely for some personal purpose or object of the vendor, but for the benefit of some other land of his in the sense that it would enable him to dispose of that land to greater advantage, the covenant, though not annexed to such land so as to run with any part of it, may be enforced against an assignee of the covenantor taking with notice, both by the covenantee and by persons to whom the benefit of such covenant has been assigned, subject however to certain conditions. In the first place, the other land’ must be land that is capable of being benefited by the covenant – otherwise it would be impossible to infer that the object of the covenant was to enable the vendor to dispose of his land to greater advantage. In the next place, this land must be ‘ascertainable’ or ‘certain,’ to use the words of Romer and Scrutton L.JJ. respectively. For, although the court will readily infer the intention to benefit the other land of the vendor where the existence and situation of such land are indicated in the conveyance or have been otherwise shown with reasonable certainty, it is impossible to do so from vague references in the conveyance or in other documents laid before the court as to the existence of other lands of the vendor, the extent and situation of which are undefined.” P.288