This section is from the book "Dart's Treatise On The Law And Practice Relating To Vendors And Purchasers Of Real Estate", by J. Henry Dart . Also available from Amazon: A treatise on the law and practice relating to vendors and purchasers of real estate.
The principle of these cases.
(r) Renals v. Cowlishaw, (1878) 9 Ch. D. 125, 129 ; approved in Spicer v. Martin, (1888) 14 A. C. 12, 24 ;
58 L. J. Ch. 309 ; and see Rogers v. Hoseffood, 1900, 2 Ch. 388 ; 69 L. J. Ch. 652.
The question, therefore, resolves itself into one of intention: viz., "whether the restrictions are merely matters of agreement between the vendor and his vendees, imposed for his own benefit and protection, or are meant by him, and understood by the buyers, to be for the common advantage of the several purchasers " (s) ; - a question which can only be determined from the circumstances of each particular case. "If the restrictive covenants are simply for the benefit of the vendor, purchasers of other plots of land from the vendor cannot claim to take advantage of them. If they are meant for the common advantage of a set of purchasers, such purchasers and their assigns may enforce them inter se for their own benefit" (t).
Question is one of intention.
The fact that the several purchasers were not aware, at the date of their common purchase, of the existence of any such covenants, seems to be almost conclusive evidence of an intention that the covenants were not entered into for the benefit of the purchasers inter so, but for the advantage of the vendor himself (u). The absence of words of limitation may be sufficient to show that a covenant is merely personal (x).
Intention that they shall not he for common henefit.
On the other hand, the intention that such covenants shall run with the land for the benefit of the various purchasers inter se may be either express: as, for instance, where on the sale of a building estate in lots by the trustees of a building society, each purchaser covenanted with the vendors to observe and perform certain building stipulations, and the covenants were not only to enure to the benefit of the persons for the time being entitled under conveyances to be thereafter made by the covenantees, but the covenantees were to be deemed trustees of the covenants for the benefit of the persons claiming under any conveyance already made by the trustees, it was held that every allottee and purchaser had an equity to enforce the covenants (y). Or the intention may be implied from the surrounding circumstances: as, for instance, where land is put up to auction in lots under conditions which define the restrictions to be placed upon, and the covenants to be entered into by, the various purchasers (s); or where land is sold either together, or in lots, to be built upon in accordance with a general building scheme (a) ; or where a vendor selling part of an estate covenants, for himself and his assigns, to place certain restrictions on the use of the adjoining land which he retains (b). And the mere fact that the common vendor does not bind himself expressly to enforce the covenants which he takes for the benefit of the purchasers is not material, if the intention is otherwise clear that the purchasers are to be bound inter se (c). And it is evident that such a covenant cannot be released by the original vendor as regards land with respect to which he has parted with the benefit of it (d). Nor does the fact that the conveyance of one purchaser to some extent varies from the others where there is a common building scheme, prevent that purchaser from enforcing the general stipulations (e).
Intention that they shall he for common benefit.
(s) Per Wills, J., in Nottingham Brick Co. v. Butler, (1885) 15 Q. B. D. at p. 268 ; affd. (1886) 16 Q. B. D. 778.
(t) Ib. ; Collins v. Castle, (1887) 36 Ch. D. 243; 57 L.J. Ch. 76.
(u) Keates v. Lyon, (1869) 4 Ch. 218; 38 L.J. Ch. 357; Master v. Barnard, (1876) 4 Ch. D, 718; 46 L. J.
Ch. 505 ; Renals v. Cowlishaw, (1879) 11 Ch. D. 866; 48 L. J. Ch. 833; and see Hislop v. Lcckie, (1881) 6 A. C.560, 573 ; and Osborne v. Bradley, 1903, 2 Ch. 446, 455; 73 L. J. Ch. 49, where the passage in the text was approved by Farwell, J.
(z) Me Fawcett and Holmes, (1889) 42 Ch. D. 150 ; 58 L. J. Ch. 763.
(g) Eastwood v. Lever, (1863) 4 D. J. & S. 114; 33 L. J. Ch. 355; Jackson v. Winnifrith, (1882) 47 L. T. 243.
(z) Nottingham Brick Co. v. Buthr,
(1886) 16 Q. B. D. 778; 55 L. J. Q. B. 280 ; Chitty v. Bray, (1883) 48 L. T. 860; Bean v. Ramsgatc (Corp. of), (1892) 8 T. L. R. 199; Be Birmingham and Dist. Land Co. and Allday, 1893, 1 Ch. 342; 62 L. J. Ch. 90 ; Holford v. Acton Urb. Co., 1898, 2 Ch. 240 ; 67 L. J. Ch. 636.
(a) Coles v. Sims, (1854) 5 D. M. & G. 1 ; 23 L. J. Ch. 258; Child v. Douglas, (1854) Kay, 560; Western v. McDermott, (1867) 2 Ch. 72; 36 L. J. Ch. 76 ; Harrison v. Good, (1871) 11 Eq. 338; 40 L. J. ( h. 294; Gaskin v. Balls, (1879) 13 Ch. D. 324 ; Broun v. Inskip, (1884) Cab. & E. 231; Sheppard v. Gilmore,
(1887) 57 L. J. Ch. 6; Tindall v. Castle, (1893) 62 L. J. Ch. 555 ; and see Tucker v. Fowlss, 1893, 1 Ch. 195; 62 L. J. Ch. 172, where the intention of a general building scheme was negatived ; see also Everett v. Remington, 1892, 3 Ch. 148; 61 L. J. Ch. 574; and Bar is v. Corp. of Leicester, 1894, 2 Ch. 208 ; 63 L. J. Ch. 440, where the vendors, a municipal corporation, not having obtained the necessary approval to a conveyance giving restrictive rights over other lands, neither they nor the purchasers were bound by a building scheme; Hudson v. Cripps, 1896, 1 Ch. 265 ; 65 L. J. Ch. 328; Holford v. Acton Urb. Co., 1898, 2 Ch. 240; 67 L. J. Ch. 636.
(h) Mann v. Stephens, (1846) 15 Si. 377 ; Coles v. Sims, sup. ; Nicoll v. Terming, (1881) 19 Ch. D. 258; 51 L. J. Ch. 166 ; see Whatman v. Gibson, (1838) 9 Si. 196 ; and Mac -kenzic v. Chilisrs, (1889) 43 Ch. D. 265 ; 59 L. J. Ch. 188, where there was a mutual deed of covenant.
(c) Harrison v. Good, (1871) 11 Eq. 338 ; 40 L. J. Ch. 294; Nottingham Brick Co. v. Butler, (18S0) 16 Q. B. D. 778, 791 ; 55 L. J. Q. B.
In order that the covenants may be enforceable in Equity, it is essential that the purchaser should not be able to set up the defence of purchaser for valuable consideration without notice (f). Mere constructive notice will be sufficient to preclude this defence (g) : and a purchaser has such notice of everything which an examination of the usual length of title would have disclosed (h) ; so that an omission on his part to satisfy himself as to the nature of his vendor's title, will render him liable for an unconscious breach of the covenant (i). In one case (k), a yearly tenant, without express notice that his landlord was bound by a covenant not to use the premises as a beershop, was restrained from doing so ; upon the ground that, though only a yearly tenant, he was as much bound to inquire into his landlord's title, as if he had been the purchaser of a larger interest (/). So, too, an underlessee has been held to be bound by covenants in the original lease of which he had no actual notice, on the ground that he ought to have satisfied himself as to his lessor's title (w) : and a mere occupier managing a business with notice was held bound (n) : and where a purchaser of the fee simple entered into restrictive covenants as to the user of the land, and afterwards granted a lease which did not contain any similar prohibition, the lessee, though he had no actual notice of the covenants, was restrained at the suit of the original vendor from committing a breach (o). But where the purchaser of one lot, who entered into mutual restrictive covenants, mortgaged a part of his lot without imposing any restrictive covenants as to user, he was held not entitled against a subpurchaser from the mortgagee, who foreclosed, to enforce the restrictive covenants, though the owners of other lots might do so (p). S. 2 of the V. and P. Act, 1874, and s. 3 (1) of the Conv. Act, 1881, which preclude a purchaser of a leasehold interest from requiring title to the freehold or leasehold reversion in the absence of express stipulation, do not relieve such a purchaser from constructive notice of anything which he would have discovered had he examined that title. The effect, in fact, of not stipulating for the production of the lessor's title is, since the Act, the same as was formerly that of a stipulation not to call for it (q). The mere fact that the vendor's solicitor proposes to insert restrictive covenants in the conveyance which are partly waived and partly insisted on is not constructive notice to the purchaser or his solicitor that the property is subject to restrictive covenants (r).