Stansfield, Re

A restrictive covenant may bind successors in title in equity where it is negative, protects identifiable retained land, and the successor had notice. The benefit may pass by statutory annexation under section 78 of the Law of Property Act 1925 even where the conveyance does not expressly refer to successors in title or retained land, provided the benefited land is sufficiently ascertainable from the instrument and admissible title material. A declaration under section 84(2) requires the court to be satisfied that the land is not burdened by the covenant. Where statutory annexation remains possible, the declaration should not be made. Discharge or modification on grounds such as obsolescence or absence of injury falls within the jurisdiction of the Upper Tribunal.

Mr and Mrs Stansfield, registered proprietors of Grosvenor Garage, sought declaratory relief under section 84(2) of the Law of Property Act 1925. They wished to demolish an existing motor garage and construct a convenience store. The property was subject to a 1929 covenant restricting use of buildings to a motor garage.

The claim was unopposed and had no named defendant. The central issue was whether the covenant could still be enforced by successors in title to the original covenantees. That depended principally on whether its benefit had been annexed to identifiable retained land under section 78 of the Act.

1. The claim was dismissed. The court was not satisfied that the land was free from the restrictive covenant and therefore could not make the requested declaration under section 84(2) of the Law of Property Act 1925.
2. The covenant was negative in nature and notice was established by its registration and the land-charge entry. There was no building scheme and no effective express assignment. The original covenantees and their personal representatives no longer retained land capable of enforcing the covenant, and the mortgagee no longer had a relevant charge.
3. The court adopted the requirements summarised in Whitgift Homes Limited v Stocks (2001), approved on appeal in Stocks v Whitgift Homes Limited [2001] EWCA Civ 1732. For enforcement by a successor to benefited land, the covenant must touch and concern that land, the benefit must have passed by annexation, assignment or scheme, and there must be no good reason to deny enforcement.
4. Section 78 applied. Although the 1929 conveyance did not expressly refer to successors in title or state that the covenant benefited retained land, its recitals, the reference to Holland Slack Farm, and the separate covenant with the mortgagee sufficiently connected the covenant with the Worthingtons’ retained land. The land was ascertainable by reference to the 1928 conveyance and its plan. The benefit was therefore annexed to the whole, and each part, of that retained land.
5. Any application to discharge or modify the covenant because it had become obsolete, or because its discharge would cause no injury, had to be made to the Upper Tribunal under section 84(1), not determined under the present section 84(2) claim.