Crest Nicholson v McAllister [2004] 1 WLR 2409

Court of Appeal

Basic Facts: N aimed to develop land subject to restrictive covenants. Some plots had express annexation, others did not. D opposed the development claiming benefits from these covenants.

Issue for the Court: When has the benefit of a restrictive covenant been annexed to the land?

Held: The court ruled that a restrictive covenant could be enforceable if it clearly benefits the dominant land and is intended to run with the land.

Chadwick LJ

• To enforce a restrictive covenant, the benefit must be annexed to the land.

• Pre-1925: External evidence was needed to show land benefited by the covenant.

• Post-1926 (LPA s.78(1)): Covenants are presumed to benefit the covenantee's land and successors.

• The land benefited must be identifiable, and s.78's lack of “contrary intention” suggests benefits always pass unless explicitly excluded.