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Haywood v Brunswick Permanent Benefit Building Society (1881) 8 QBD 403;

46 JP 356, 51 LJQB 73, 30 WR 299, 45 LT 699

COVENANT TO KEEP IN GOOD REPAIR, ENFORCEABILITY, GRANT OF LAND SUBJECT TO RENT, ASSIGNMENT OF LAND AND RENT, NOTICE,

BURDEN AND BENEFIT OF COVENANTS

Facts

In May 1866, C.J. granted a plot of land to E.J. to use subject to a rent of 11l. The indenture contained a covenant by which E.J., his executors, administrators, and assigns undertook to pay C.J., his heirs and assigns the rent half-yearly, keep in good repair the land and when necessary, rebuild messuages on the land of the value of double the rent. In 1867, C.J. conveyed to Haywood – the plaintiff, his heirs and assigns, the rent, together with the benefit of the covenant. E.J. assigned his interest to MacAndrew. By a deed, in 1871, MacAndrew mortgaged the messuages on the land to the trustees of the Brunswick Permanent Benefit Building Society – the defendants, subject to the rent charge and the covenants. In 1874, the building society took possession of the land and the buildings on it under the mortgage deed. The building society did not keep the messuages in good repair. The plaintiff brought an action against the defendants in order to enforce the covenant.

Issue

(1) Did the covenant run with the land?

(2) As the defendants had equitable notice of the covenant, did they have to perform it?

Held

The decision was in favour of the defendants.

The case was distinguished from Tulk v Moxhay [1848] EWHC J34 (Ch) as the rule that a covenant may be enforceable against the assignees in equity, only applies to restrictive covenants, i.e. covenants to use or not to use the land in a particular way.

(1) In the present case, the covenant did not run with the land so as to give the plaintiff the right to sue either at law or in equity.

(2) Where land has been granted subject to a rent charge and a covenant to repair buildings, the assignee of the grantee of the land is not liable either at law or in equity to the assignee of the grantee of the rent-charge on the covenant to repair.


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