The answer depends on whether the benefit of the covenant is ‘annexed’ to the dominant land. For pre-1926 documents, it is not necessary to have express words of annexation; if, on the construction of the document containing the covenant, both the land which is intended to be benefited and an intention to benefit that land can clearly be established, then the benefit will be annexed to the land. For post-1925 conveyances, s78 LPA 1925 applies. This says that covenants relating to land are deemed to be made with the covenantee’s successors in title (and this will include the owners and occupiers for the time being of the covenantee’s land intended to be benefited). Following Federated Homes [1980] it was widely believed that s78 would result in an automatic statutory annexation without the land being specifically identified, provided the covenant touched and concerned the land of the seller.

Thus, it was generally assumed that less specific identification was needed for post-1925 covenants than for pre-1926 covenants. However, that conventional view has now been largely rejected by the CA which has held that, for annexation to apply, the identity of the land to be benefited must be ascertainable from the instrument containing the covenant. In practical terms, this would seem to imply that there is really no difference in the identification requirements when dealing with a pre-1926 covenant or a post-1925 covenant.

It is clear that prudent draftsmen should spell out the position in the document so as to leave no room for doubt. But, in the meantime, it should not be forgotten that there never was (pre-1926) a requirement for express words of annexation (as noted above). What seems clear, however, is that this decision makes it far easier for developers to flout post-1925 covenants than was previously thought to be the case. Henceforward, if a document lacks a specific indication of the land intended to be benefited then developers will feel relatively confident of challenging the validity of the restrictive covenant. Whether that is a good or a bad thing probably depends upon one’s personal view as to the desirability of having a private mechanism for planning control through the use of restrictive covenants or, alternatively, whether alternatively planning control should solely be in the hands of public bodies (through the planning legislation). For a commentary on Crest Nicholson v McAllister [2004] EWCA Civ 410 see [2004] 133 Property Law Journal 10. © Practical Lawyer