P’s predecessor owned 2 shops, 50yds apart on opposite sides of the street. She sold shop A to D’s predecessor subject to the restrictive covenant that it was not to sell any ironmongery. Although the covenant didn’t identify dominant land, Shop B was an ironmongery. Upjohn J held that although the dominant land was not expressly identified in the conveyance which contained the restrictive covenant, it could be identified by examining the geography of the locality. That was sufficient.
Upjohn J: The question is whether P is (1) entitled to benefit from the restrictive covenant and hence (2) whether they are entitled to enforce it against D. (1) can be established if P was either assigned the right or the covenant was annexed to the land. “In order to annex the benefit of a restrictive covenant to land so that it runs with the land without express assignment on a subsequent assignment of the land, the land for the benefit of which it is taken must be clearly identified in the conveyance containing the covenant.” There is NO annexation here as there is no assignment not clear identification in the conveyance agreement. However assignment does allow (1) to be fulfilled since P’s predecessor left her estate to him in her will. The covenant is part of her estate i.e. is a valid assignment. On point (2), “in order that the benefit of the covenant may be assignable the land for which the benefit of the covenant is taken must in some way be referred to in the conveyance”. This is satisfied by looking at the surrounding circumstances.