Crest Nicholson Residential (South) Ltd v McAllister [2004] 1 WLR 2409

Key points
  • The identity of land benefiting from a covenant can be ascertained by extrinsic evidence outside of the original deed creating the covenant
  • Annexation can be rebutted by contrary intention
Facts
  • Vendor had conveyed land that had 6 plots
  • All 6 of the conveyances contained the covenant: “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”
  • 3 of the covenants were “for the benefit of the property… aforesaid belonging to [the company] or the part thereof for the time being remaining unsold”
  • C bought the garden of 3 plots and the whole of 1 plot and sought to combine them to build new houses
  • M opposed the development claiming to be entitled to the benefit of the covenants
Held (Court of Appeal)
  • M is unsuccessful as her land was insufficiently identified to be annexed
Chadwick LJ

Ascertainably of benefiting land

  • 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’

Rebuttal of annexation

  • The qualification ‘subject to contrary intention’ is implicit in the definition of ‘successors in title’ in s78
  • If the terms of the covenant show that there was no intention to benefit successors in title, the owners and occupiers of the land sold off are not ‘owners and occupiers for the time being of the land of the covenantee intended to be benefited’
  • As Brightman LJ pointed out in Federated Homes, a developer selling off plots without imposing a building scheme may wish to retain exclusive power to give or withhold consent to a modification of a restriction on building which he imposes on each purchaser
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