Mohammadzadeh v Joseph & Ors

For a restrictive covenant in a conveyance made after 1925, Law of Property Act 1925 section 78(1) removes the need to prove a separate intention that successors in title should enforce the covenant. It is sufficient to establish that the covenant touches and concerns the vendor’s retained land and that the benefited land is readily ascertainable from the conveyance and admissible extrinsic evidence. Once those conditions are met, the benefit is annexed to the land and is enforceable by successors in title. The conveyance need not contain an express statement, or a necessary implication apart from the statutory wording, that the covenant benefits successors rather than the original covenantee personally.

The claimant owned land burdened by restrictive covenants contained in a 1963 conveyance. The defendants were successors in title to land retained by the original vendors. The claimant sought a declaration under Law of Property Act 1925 section 84(2) that the covenants were personal to the vendors and could not be enforced by the defendants.

The parties agreed that the covenants touched and concerned the retained land and that the retained land could be identified from the conveyance and admissible extrinsic evidence. The central issue was whether the claimant also had to establish an express or implied intention that the retained land should benefit from the covenants, distinct from personal contractual enforcement by the vendors.

1. The claim was dismissed. The covenants were enforceable by the defendants as successors in title to the retained land.

2. For a post-1925 conveyance, section 78(1) of the Law of Property Act 1925 provides statutory annexation where a restrictive covenant touches and concerns the covenantee’s land. A separate requirement to show an intention that successors in title, rather than the original covenantee alone, should enforce the covenant is unnecessary.

3. The benefited land must nevertheless be readily ascertainable from the conveyance and admissible extrinsic evidence. That requirement protects purchasers of burdened land by enabling them to identify both the burden and the persons entitled to enforce it.

4. The covenants here protected and enhanced the enjoyment, use and value of the retained land. The conveyance showed that the conveyed plot had been carved out of the vendors’ land at No. 68, and the retained land was readily ascertainable. Section 78(1) therefore made the benefit enforceable by the defendants.

5. Marquess of Zetland v Driver [1939] 1 Ch. 1 did not require an express statement that the covenant benefited the retained land. Newton Abbot Co-operative Society Ltd v Williamson & Treadgold Ltd [1952] 1 Ch. 286 concerned a pre-1925 conveyance and did not alter the position under section 78(1). Federated Homes Ltd v Mill Lodge Properties Ltd [1980] 1 WLR 594 was applied as deciding the relevant statutory point, while Crest Nicholson Residential (South Ltd) v McAllister [2004] EWCA Civ. 410, [2004] 1 WLR 2409 was treated as confirming the ascertainability requirement.

not stated in the judgment.