Enforceability of the Benefit of a Covenant

AuthorWilliam Webster/Robert Weatherley
Chapter 25

Enforceability of the Benefit of a Covenant


25.1 A covenant may be enforced by the original covenantee even after he has sold the benefited land1although, in such a case, the damages would be nominal as the loss will have fallen on his successor2unless, that is, the liability of the covenantor was expressed to last only for as long as he continued to have an interest in the burdened land.3A positive covenant continues in force against the covenantor, and claims may even be brought against his estate.4

1By the same token, the original covenantor also remains liable on the covenant even after he has parted with the freehold of the burdened land unless there is an express provision which excludes his liability in such circumstances. If he has merely given up possession, he could still be liable for the acts of his licensees or lessees depending on the scope of the covenant.

2LCC v Allen [1914] 3 KB 642 at 664.

3Tophams Ltd v Sefton [1967] 1 AC 50. In the absence of a contrary intention (either from the wording of the deed or the surrounding circumstances), a covenantor is deemed to covenant on behalf of himself and his successors in title (Law of Property Act 1925, s 79(1), in the case of covenants made after 1925). Section 79(2) provides that in relation to restrictive covenants, the expression ‘successors in title’ is deemed to include the occupiers and owners for the time being of the relevant land (see Britel Development (Thatcham) Ltd v Nightfreight (GB) Ltd [1998] 4 All ER 432 at 435–436). The position is the same in the case of a covenant relating to any land of a covenantee made after 1925 (in the sense that it ‘touched and concerned’ such land, which was ascertainable with reasonable accuracy: Smith v River Douglas Catchment Board [1949] 2 KB 500, and the parties intended that the benefit should run with such land) which is also deemed to be made with the covenantee and his successors in title which, for these purposes, in the case of restrictive covenants, shall be deemed to include the owners and occupiers for the time being of the land of the covenantee (including those deriving title under him or them) intended to be benefited (see Law of Property Act 1925, s 78(1)) which would include a lessee deriving title under the covenantee. In other words, annexation of the benefit of a covenant is automatic under s 78 (Federated Homes Ltd v Mill...

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