Smith v River Douglas Catchment Board [1949] 2 KB 500

Key point
  • Sets out the requirements for the benefit of a covenant to be annexed to land
  • To enforce an annexed covenant, the claimant need not possess the same estate as the original covenantee
Facts
  • D (Board) promised covenantee that it would main the banks of a stream next to her land
  • Covenantee sold the land to Smith (the first C) who leased it to a farming company he owned (the second C)
  • The river flooded because of D’s failure to carry out maintenance
  • Cs sought to recover losses from D for breach of covenant
Held (Court of Appeal)
  • Cs are successful in their claim
  • The benefit of the covenant had been intended to run pursuant to s78 LPA 1925
Sommervell LJ
  • For a covenant to run with the land
    • It must be made with a covenantee who has an interest in the land to which they refer
    • It must touch and concern the land, meaning that it must affect the land as regards its mode of occupation or its value
    • It must be the intention of the parties that the benefit should run with land
  • The deed need not expressly identify the particular land to be benefited, extrinsic evidence is admissible
Denning LJ
  • For the benefit of a covenant to run with the land, the claimant need not possess the same estate as the original covenantee
  • s78 LPA 1925 provides that a covenant relating to any land of the covenantee shall be deemed to be made with the covenantee and his successors in title, “and the persons deriving title under him or them” and shall have effect as if such successors “and other persons” were expressed
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