“This Indenture made the Sixth day of April One thousand nine hundred and twenty two BetweenFrancis William Forester of Saxelbye Park Melton Mowbray in the County of Leicester formerly a captain in Her late Majesty’s Army (hereinafter called “the Vendor”) of the first part Brinsley John Hamilton FitzGerald of 63 Duke Street Grosvenor Square in the County of London Esquire a Companion of the Most Honourable Order of the Bath and Arthur Henry Brinsley FitzGerald of Thorpe Satchville Melton Mowbray in the County of Leicester Esquire (hereinafter called “the Trustees”) of the second part and The Bath and County Recreation Ground Company Limited whose registered Office is at 22 Milsom Street in the City of Bath (hereinafter called “the Purchasers”) of the third part Whereas under an Indenture of Settlement (hereinafter called “the Settlement”) dated the Nineteenth day of July One thousand nine hundred and twenty and made between the Vendor and Henry William Forester of the one part and the Trustees of the other part the Bathwick Estate in the County of Somerset of which the hereditaments hereinafter described form part was assured subject to certain family charges affecting part of the said estate (but which part did not include any of the said hereditaments hereinafter described) to uses under which the Vendor is tenant for life in possession thereof And by the Settlement the Trustees were appointed to be the Trustees thereof for the purposes of the Settled Land Acts 1882 to 1890 Andwhereas the joint power of appointment given by the Settlement to the said Francis William Forester and Henry William Forester has never been exercised so far as concerns the hereditaments hereinafter described Andwhereas the vendor as tenant for life in possession under the Settlement has agreed with the Purchasers for the sale to the Purchasers of the said hereditaments hereinafter described and the fee simple thereof in possession free from incumbrances at the price of Six thousand and fifty pounds Nowthis Indenture made in pursuance of the said agreement and in consideration of the sum of Six thousand and fifty pounds paid by the Purchasers by the direction of the Vendor to the Trustees as such Trustees as aforesaid (the receipt whereof the Trustees hereby acknowledge) witnessethand it is hereby agreed and declared as follows that is to say:- 1. The Vendor in exercise of the power for this purpose conferred by the Settled Land Acts 1882 to 1890 and of every other power enabling him and as beneficial owner hereby conveys unto the Purchasers All that piece or parcel of ground situate in the City of Bath and containing an area of Sixteen acres two roods and eleven perches or thereabouts and known as The Bath and County Recreation Ground Together with the building erected thereon near the North Parade Road formerly used as a Skating Rink and now in the occupation of Aircraft Limited and the Pavilion near to the Pulteney Mews now in the occupation of the Purchasers as Lessees thereof under an Indenture of Lease dated the Twenty fifth day of March One thousand nine hundred and eight and made between the Vendor of [of] the one part and Charles Henry Simpson and others of the other part and also the two buildings formerly used as two Cottages adjoining and on the South side of Pulteney Mews now in the occupation of the Purchasers and The Bath and County Croquet Club respectively Except and reserving unto the Vendor and his successors in title and his and their heirs and assigns the free and uninterrupted passage and running of water and soil from the other buildings and land of the Vendor and his tenants adjoining or near to the said hereditaments hereinbefore described through the sewers drains and watercourses which are now or may hereafter be in or under the said premises To hold unto and to the use of the Purchasers their successors and assigns in fee simple discharged from all the limitations trusts powers and provisions of the said Settlement and from all estates interests and charges subsisting or to arise thereunder Subject to and with the benefit of an Indenture of Lease dated the Twenty fifth day of March One thousand nine hundred and eight and made between the Vendor of the one part and Charles Henry Simpson, James Edward Henshaw, Egbert Lewis, Alfred George Derwent Moger, William Morgan and William Frederick Cooling of the other part Whereby the said hereditaments hereinbefore described were demised for a term of Twenty one years from the Twenty fifth day of March One thousand nine hundred and eight at the yearly rent of One hundred pounds 2. The Purchasers for themselves their successors and assigns hereby covenant with the Vendor his successors in title and assigns and to the intent and so that this covenant shall run with and be binding on such portions of the hereditaments and premises hereby conveyed as are respectively affected thereby into whosesoever hands the same may come but so that the Purchasers shall not be personally liable in damages for any breach thereof after they shall have parted with the same hereditaments and premises that no workshops warehouses factories or other buildings for the purpose of any trade or business which may be or grow to be a nuisance annoyance or disturbance or otherwise prejudicially affect the adjoining premises or the neighbourhood shall at any time hereafter be erected upon the said hereditaments and premises except the part thereof now in the occupation of Aircraft Limited and that nothing shall be hereafter erected placed built or done upon the said hereditaments and premises including such part thereof as last aforesaid which may be or grow to be a nuisance and annoyance or disturbance or otherwise prejudicially affect the adjoining premises or the neighbourhood Providedalways that no factory chimney shall be erected on the portion of the said hereditaments now in the occupation of Aircraft Limited 3. Providedalways that so far as regards the reversion or remainder expectant on the life estate of the Vendor in the premises hereby conveyed and the title thereto and further assurance thereof after his death the statutory covenant by him implied in these presents shall not extend to the acts or defaults of any person other than and besides himself and persons deriving title under him 4. The Vendor hereby acknowledges the right of the Purchasers to production of the documents mentioned in the Schedule hereto and delivery of copies thereof and hereby undertakes for the safe custody thereof In witness whereof the Vendor and the Trustees have hereunto set their hands and seals and the Purchasers have caused their common seal to be hereunto affixed the day and year first before written ⸓ The Schedule above referred to 1920 July 19th Disentailing Assurance made between the Vendor of the first part and Henry William Forester of the second part and Edward Harrow Ryde of the third part 1920 July 19th Resettlement made between the Vendor and the said Henry William Forester of one part and Brinsley John Hamilton FitzGerald and Arthur Henry Brinsley FitzGerald of the other part”
“The covenant is one not to do certain things to the prejudice of “the adjoining land or the neighbourhood”
“I decline to hold that, because there is some uncertainty at the fringe, the owners of those properties which can be demonstrated to have formed part of the Estate at the time of the 1922 Conveyance, and which can properly be said to be adjoining or near the Rec, cannot enforce the covenant the benefit of which was in my judgment annexed to their properties. If a person comes forward claiming that the benefit of the covenant has been annexed to his or her property, the burden will lie on that person to show that that is so.”
“when the benefit of the covenant has been once clearly annexed to one piece of land, it passes by assignment of that land, and may be said to run with it … In such a case it runs … because the purchaser has bought something which inhered in or was annexed to the land bought.”
“The accurate expression appears to me that the covenants are annexed to the land, and pass with it in much the same way as title deeds, which have been quaintly called the sinews of the land: Co Litt. 6 a. Thus the right to sue on such covenants passes to the heir and not to the executors…”
“the law in regard to annexation of a covenant to land as recognized as long ago as the year 42 Edw. III. (A.D. 1368) in the Prior’s case (see Spencer’s case (1585) 5 Co Rep 17 b)…”
“for the covenant is to do a thing which is annexed to the chapel, which is within the manor, and so annexed to the manor, as it is there said.”
“in order to enable a purchaser as an assign (such purchaser not being an assign of all that the vendor retained when he executed the conveyance containing the covenants, and that conveyance not shewing that the benefit of the covenant was intended to enure for the time being of each portion of the estate of which the Plaintiff is assign) to claim the benefit of a restrictive covenant, this, at least, must appear, that the assign acquired his property with the benefit of the covenant, that is, it must appear that the benefit of the covenant was part of the subject-matter of the purchase.”
“To enable an assign to take the benefit of restrictive covenants, there must be something in the deed to define the property for the benefit of which they were entered into. Supposing I were now framing the deed afresh I should not have the remotest idea how the covenant ought to be framed, as I cannot tell what the property was which the parties intended to be protected, and within what limits.”
“But a covenant may have the two characteristics above mentioned and yet not run with the land; it is in each case a question of intention to be determined by the Court on the construction of the particular document, and with due regard to the nature of the covenant and the surrounding circumstances.”
“The real and only difficulty arises on the question – whether the benefit of the covenants has passed to the assigns of Sir John Millais as owners of the plot purchased by him on March 25, 1873, there being no evidence that he knew of these covenants when he bought. Here, again, the difficulty is narrowed because by express declaration on the face of the conveyances of 1869 the benefit of the two covenants in question was intended for all or any of the vendor’s lands near to or adjoining the plot sold, and therefore for (among others) the plot of land acquired by Sir John Millais…”
“there was no expression, as there is in the present case, that the restriction was intended for the benefit of any part of the estate retained.”
“Now applying the test laid down in Renals v Cowlishaw, I cannot find that there is enough here, in the conveyance of April 14, 1883, to annex the benefits of the covenants in question to the whole of the Branksome Estate then remaining in the hands of the covenantees or to any particular portions thereof. Certainly there are no such definite words as were to be found in Rogers v Hosegood, and I cannot find such sufficient context in the other parts of the conveyance to serve the purpose. No doubt one can see plainly that the covenants were inserted because the covenantees were owners of adjoining property and with a view to benefiting them accordingly. But this was really equally obvious in Renals v Cowlishaw, and I cannot see that there is any greater reason in this case than in that for ascribing an intention to benefit the retained property and the owners thereof by virtue merely of their ownership… The case of Rogers v Hosegood is, of course, entirely distinguishable from the present, since there the benefit of the covenants was in terms annexed to lands which were the subject of a sufficient though somewhat general description.”
“There are two familiar methods of indicating in a covenant of this kind the land in respect of which the benefit is to enure. One is to describe the character in which the covenantee receives the covenant. This is the form which is adopted here, a covenant with so and so, owners or owner for the time being of whatever the land may be. Another method is to state by means of an appropriate declaration that the covenant is taken “for the benefit of” whatever the lands may be.”
“a purchaser from the original covenantee of land retained by him when he executed the conveyance containing the covenant will be entitled to the benefit of the covenant if the conveyance shows that the covenant was intended to enure for the benefit of that particular land.”
“In this difficult branch of the law one thing in my judgment is clear, namely that in order to annex the benefit of a restrictive covenant to land, so that it runs with the land without express assignment on a subsequent assignment of the land, the land for the benefit of which it is taken must be clearly identified in the conveyance creating the covenant.”
“If, on the construction of the instrument creating the restrictive covenant, both the land which is intended to be benefited and an intention to benefit that land, as distinct from benefiting the covenantee personally, can be clearly established, then the benefit of the covenant will be annexed to that land and run with it, notwithstanding the absence of express words of annexation.”
“the plaintiffs contend that the intention must be manifested in the conveyance in which the covenant was contained when construed in the light of the surrounding circumstances, including any necessary implication in the conveyance from those surrounding circumstances. The defendants claim that such intention may be inferred from surrounding circumstances which fall short of those which would necessitate an implication in the conveyance itself.”
“and that nothing shall be hereafter erected placed built or done upon the said hereditaments and premises including such part thereof as last aforesaid which may be or grow to be a nuisance and annoyance or disturbance or otherwise prejudicially affect the adjoining premises or the neighbourhood…”
“The covenant is one not to do certain things to the prejudice of “the adjoining land or the neighbourhood”
“the land which is intended to be benefited must be so defined as to be easily ascertainable, and the fact that the covenant is imposed for the benefit of that particular land should be stated in the conveyance and the persons or class of persons entitled to enforce it.”
“there is nothing in that case which suggests that it is no longer necessary that the land which is intended to be benefited should be so defined that it is easily ascertainable. In my view, that requirement, identified in [Zetland v Driver] remains a necessary condition for annexation.”
“it is sufficient for the conveyance to describe the land intended to be benefited in terms which enable it to be identified from other evidence.”
“it is expressly stated in the conveyance to be for the benefit of the unsold part of the land comprised in the settlement and such land is easily ascertainable”
“There are, I think, good reasons for that requirement. A restrictive covenant affecting land will not be enforceable in equity against a purchaser who acquires a legal estate in that land for value without notice of the covenant. A restrictive covenant imposed in an instrument made after 1925 is registrable as a land charge under class D(ii):section 10(1) of the Land Charges Act 1925 and, now,section 2(5) of the Land Charges Act 1972 . If the title is registered, protection is effected by entering notice of the restrictive covenant on the register:section 50 of the Land Registration Act 1925 and, now,section 11 of the Land Registration Act 2002 . Where practicable the notice shall be by reference to the instrument by which the covenant is imposed and a copy or abstract of that instrument shall be filed at the registry:section 50(1) of the Land Registration Act 1925 andsection 3(5) of the Land Charges Act 1972 . It is obviously desirable that a purchaser of land burdened with a restrictive covenant should be able not only to ascertain, by inspection of the entries on the relevant register, that the land is so burdened, but also to ascertain the land for which the benefit of the covenant was taken - so that he can identify who can enforce the covenant. That latter object is achieved if the land which is intended to be benefited is defined in the instrument so as to be easily ascertainable. To require a purchaser of land burdened with a restrictive covenant, but where the land for the benefit of which the covenant was taken is not described in the instrument, to make inquiries as to what (if any) land the original covenantee retained at the time of the conveyance and what (if any) of that retained land the covenant did, or might have, ‘touched and concerned’ would be oppressive. It must be kept in mind that (as in the present case) the time at which the enforceability of the covenant becomes an issue may be long after the date of the instrument by which it was imposed.”