Re Ballard’s Conveyance [1937] Ch 473

Key point
  • For the benefit of a covenant to run with the land, it must touch and concern the whole of the land
  • This view is now overturned – annexation to each and every part is the correct rule under Federated Homes
Facts
  • The land a restrictive covenant purported to benefit is 1700 Acres
Issue
  • Was the covenant annexed to the land?
Held (High Court)
  • The covenant was not annexed to the land
Clauson J
  • Where a restrictive covenant purports to have been annexed to land so as to run with it, and does not in fact “concern or touch” the whole of the land, the annexation is ineffective
  • Even if there is some part of the land which the covenant does “concern or touch,” the Court will not sever it and treat it as annexed to that part
  • In the current case, while the covenant may concern or touch some comparatively small portion of the land to which it has been sought to annex it, it fails to concern or touch the largest part of the land
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