Bath Rugby Ltd v Greenwood & Ors (pre-1926 restrictive covenants affecting land)

For a restrictive covenant entered into before 1926, annexation of its benefit depends on the intention shown by the conveyance, construed in its factual context. The conveyance must describe the benefited land in terms enabling it to be identified from other evidence. It is unnecessary to establish a further, free-standing requirement that the land be “easily ascertainable”. The phrase “successors in title” ordinarily refers to successive owners of an estate or interest in particular land, rather than successive tenants for life under a settlement. Uncertainty at the margins does not defeat annexation where particular land can be shown to fall within the description. The person asserting the benefit bears the burden of proving that entitlement.

The claimant sought a declaration under section 84(2) of the Law of Property Act 1925 that a restrictive covenant in a 1922 conveyance of the Bath Recreation Ground was unenforceable by anyone. The covenant restricted buildings and activities liable to cause nuisance, annoyance, disturbance or prejudice to adjoining premises or the neighbourhood.

The seventh and eighth defendants owned property which had formed part of the Bathwick Estate retained by the vendor in 1922. They relied on annexation of the covenant’s benefit. The claimant also addressed express assignment and a possible building scheme. The central issue was whether the covenant remained enforceable by successors in title to benefited land.

1. Procedure. The claimant had made every effort to notify persons who might wish to oppose a declaration binding in rem. Section 84(2) proceedings require an obligation of means rather than perfect success in contacting every potentially interested person. The procedural requirements were satisfied.
2. Annexation. The pre-1926 covenant was capable of annexation. The governing question was whether the conveyance, construed in light of the surrounding circumstances, manifested an intention to benefit particular land. The words “successors in title” in this external conveyance referred in their ordinary property-law sense to successive owners of land, not to successive tenants for life or beneficiaries under the settlement.
3. The covenant’s references to “the adjoining premises or the neighbourhood” were read with the reservation in clause 1 referring to the vendor’s and his tenants’ land “adjoining or near to” the conveyed land. That formula sufficiently identified the benefited land. It was unnecessary to impose an additional requirement that the land be “easily ascertainable”. The relevant issue was linguistic certainty, not the practical difficulty of locating historical evidence.
4. Subsequent conveyances’ failure to mention the benefit did not defeat the intention manifested in 1922. Owners claiming the benefit had to prove that their land formed part of the vendor’s retained estate and was adjoining or near the Rec. The seventh and eighth defendants discharged that burden.
5. Alternative routes. No reasonable possibility of an effective chain of express assignments had been shown. The evidence also failed to establish the mutually enforceable covenants and defined area required for a building scheme.
6. Disposition. The claim for a declaration that the covenant was unenforceable by anyone was dismissed. The covenant was enforceable by the seventh and eighth defendants, and potentially by others able to prove the same annexation.

First-instance decision. No prior appellate decision is stated in the judgment.