• In the case of Re Union of London and Smiths Bank Lrd 1933 Ch 611, it was held that an assign of the covenantee’s retained land cannot enforce the covenant against an assign where a sale other than under a building scheme restrictive covenant is taken.

Facts of the Case

  • In June 1907 a limited company named Shoreham acquired land in the vicinity of Shoreham and lancing in the county of Sussex.
  • The land was mortgaged by Shoreham Company. In the year 1908 the company agreed to sell a part of the land they purchased to Mrs. Blaker who later died before any conveyance had been made.
  • The executors of her will were Nathaniel George Blaker, Herbert Blaker and Cecil Somers Clark.
  • The conveyance of October 23, 1908, being the first of the conveyances mentioned in the title to the summons, was made for the purpose of carrying out the agreement of purchase made between the Shoreham Company and Mrs. Blaker. The parties to the deed were the Union of London and Smith’s Bank, Ld., the first mortgagees, referred to in the deed as “the said Bank,” of the first part, the Shoreham Company, referred to in the deed as “the vendors,” of the second part, Lord Lucas, a second mortgage, of the third part, George Cecil Buller, who was an incumbrancer upon the land conveyed, of the fourth part, and Mrs. Blaker’s executors, referred to in the deed as “the purchasers,” of the fifth part.
  •  The lands conveyed by this deed had an area of 515 acres, 2 roods, 3 perches, and were delineated and described on the plan annexed thereto and thereon coloured pink, violet, brown and red.

The land was distinguished on this plan by these colours, there was other land which was owned and retained by the Shoreham Company and was distinguished on the plan by the colour green.

  •  On May 10, 1909, Mrs. Blaker’s executors conveyed part of the land which had been conveyed to them on October 23, 1908, to a Mr. Pullen Bury. Mr. Pullen Bury proceeded at once to divide up into parcels what he had purchased from Mrs. Blaker’s executors and to convey those parcels to several different purchasers, and on May 11, 1909, he conveyed one of those parcels to Mr. Phillips.
  • The parcel conveyed to Phillips included the land now owned by the plaintiff. Phillips entered a restrictive covenant with Mr. Pullen Bury, and the plaintiff at the time of his purchase had notice of this restrictive covenant.
  • The two conjoined cases concerned deeds of conveyance entered in 1908 and 1909 respectively, which contained restrictive covenants from purchasers benefiting the land retained by the vendors.
  • The assignees of the vendors sought to enforce restrictive covenants against assignees of the purchasers
  • It was argued whether the covenant was enforceable.

Issues in Re Union of London and Smiths Bank Lrd 1933 Ch 611

  • The dispute was that the assignees of the vendors could not enforce the covenant as the deed could not sufficiently ascertain that the land would benefit from the covenant.

Held by Court of Appeal

  • Appeal dismissed with the judges noting that “the appeal fails and must be dismissed with costs”.

RomerLJJ:

  • Romer considered that other than in a building scheme, unless the actual benefit of a covenant was annexed to the land, the purchaser will not be able to acquire the benefit of the covenant unless the benefit was to be expressly assigned to him.

Lord Hanworth M.R

  • 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.
  • “As pointed out by that learned judge, the covenant having been entered into to enable the covenantee to dispose of his property to advantage, that result will in fact have been obtained when all that property has been disposed of. There is therefore no longer any reason why the Court should extend to him the benefit of the equitable doctrine of Tulk v Moxhay.”  P.631-p632

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