Rogers v Hosegood [1900] 2 Ch 388

Key point
  • The benefit of a covenant, once annexed to the land, passes without notice of the purchaser of the benefiting land
Facts
  • The owners of two plots of land sold plot 1 to D
  • The conveyance created a restrictive covenant that were stated to be intended to benefit the owners and successors of Plot 2
  • C bought plot 2, unaware of a covenant that benefits the land
  • Later,  C sought to enforce the covenant against D
Held (Court of Appeal)
  • C could enforce the covenant against D
Collins LJ
  • ‘when the benefit has been once clearly annexed to one piece land, it passes by assignment of that land, and may be said to run with it, in contemplation as well of equity as of law, without proof of special bargain or representation on the assignment’
  • The benefit runs ‘not because the conscience of either party is affected, but because the purchaser has bought something which inhered in or was annexed to the land bought’
  • Once a benefit is annexed to the benefiting land, ‘the presumption must be that it passes on a sale of that land, unless there is something to rebut it, and the purchaser’s ignorance of the existence of the covenant does not defeat the presumption’
Commentary
  • As Collins LJ pointed out in his judgment, where the original conveyance that created the covenant did not annex the covenant to the benefiting land, an express assignment to the purchaser of the benefiting land will be required
  • Where, as in this case, the benefit was annexed, an express assignment of the benefit is not required
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