Rogers v Hosegood [1900] 2 Ch 388
In this case it was considered whether a covenant ran with the land in circumstances where the purchaser was not aware of the covenants given by the purchaser of other lots. The land was conveyed by the owners and mortgagees with a covenant in favour of the owners that the land would not be used for anything other than a single dwelling house, and later a second lot adjoining the first was conveyed on the same basis. Then a subsequent purchaser bought other nearby land separated by one lot from the first purchaser’s land and entered into a covenant that he should not build more than two dwelling houses on the land. The second purchaser was however unaware of the covenants in the first two conveyances. The intervening land was sold to the first purchaser without any covenant. Later the covenants over the first two lots released by the vendors and the claimant bought two other lots nearby.
Hosegood, purchased the three lots sold to the first purchaser.
There was then an action to restrain the construction of a block of flats on the first lot.
Held: The assigns of the second plot could enforce the covenant against the assigns of the first plot because the erection of a large building to be occupied as residential flats would be a breach of the covenant. Finally, although the mortgagors had released the covenant so far as the number of houses was concerned, any building must be used for a private residence only and the proposed building would be a breach of this covenant as well.
It was also stated that the covenant must 'touch and concern' the land to be benefited. Thus the covenant must affect the mode of occupation or the value of the covenantee's land. A covenant will not 'touch and concern' the covenantee's land if the area of that land is so large that it cannot reasonably be benefited by the covenant.
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