Ms Sugarman was the freehold owner of land known as Ruston Withdean Avenue, Brighton. Sugarman sought a declaration that the defendants were not entitled to the benefit of convenants set out in a schedule attached to the conveyance of Sugarman's property. Alternatively Sugarman sought a declaration that the defendents were not entitled to enforce the covenants.
Sugarman had purchased the land from Mrs Hart. The land originally comprised a cottage with a large garden and orchard. Hart sold off parts of the land in three sections between 1953 and 1957 and retained the cottage herself. In two of the conveyances, the purchaser covenanted to (i) not erect any building on the land save a selling house and garage, such dwelling house and garage to be erected only in accordance with plans approved by the vendor or the vendor's surveyor, and (ii) to erect fences on certain sides of the land conveyed. The third conveyance did not impose any fresh covenants. The defendents derived their title from this conveyance.
Sugarman proposed to demolish the building on her property and to erect eight self contained apartments. Sugarman argued that on the true construction of the above covenant Hart reserved the right to enforce the covenant for the benefit of the parts of the retained land comprised in the 1953 conveyance in her favour as long as they were unsold. In the event that they or parts of them were subsequently sold the benefits of the covenant were not to pass unless it was expressly assigned with the conveyance. Sugarman argued that as there was no express assignment in the third conveyance and as all land had now been sold by Hart the benefit of the covenants had not passed.
The defendents argued: (i) that there had been an assignment by virtue of Section 63 of the Law of Property Act 1925 so that each subsequent conveyance should have read into it an assignment of the benefit of the convenants, and (ii) that the existence of a fencing covenant of a well known form (i.e. to erect and forever after to maintain a wall) shows there was an intention to annex the benefit of that covenant and therefore all the other covenants to Hart's land generally.
Did the benefit of the covenants contained in the original conveyance pass to the defendents?
Reference
The defendents were not entitled to the benefit of the covenants and Sugarman was entitled to the declaration sought.
In a conveyance where the benefit of the covenant is said to benefit the land that remains unsold from time to time of a vendor the effect is to annex the covenant to that land for the period in which the land remains unsold. Upon the sale of the land the covenant is not annexed and will only pass if there is an express assignment. It was plain that the covenants were intended to enable Hart to control so long as she was the owner from time to time of the land unsold. If Hart ceased to own a piece of land by sale the benefit of the covenant ceased to be annexed to that land upon sale unless it was expressly assigned when the benefit became enforceable by virtue of that assignment.
There was not an assignment by virtue of s.63 of the Law of Property Act as the wording of the conveyance was a contrary intention to the operation of s.63.
As the obligation to fence contained in the covenant was not in the nature of an easement, the dedendent's arguments were rejected.
*Full case details
Lucille Nancy Sugarman vs (1) George Richard Porter (2) David Neil Creedon (3) Brighton Lions Housing Society Ltd (4) Teresa Wall, 8 March 2006, High Court - Chancery Division[2006 EWHC 331], HHJ Peter Smith
Contact Fenwick Elliott on 020 7421 1986 or NGould@fenwickelliott.co.uk
Postscript
A covenantor can make express words limit the scope of the obligation they are undertaking and can accept a covenant for their benefit on terms that the benefit does not automatically pass. In order for the benefit of a covenant to pass it must be shown that the covenant touches and concerns the land so as to be capable of annexation. In this case, the clear wording of the covenant showed that the covenant touched and concerned the land only as long as the land that belonged to Hart was unsold. After this time, the benefit would only pass with express assignment.
