Andrew Robins

Published 22 February 2021

Restrictive Covenant Dated pre-1926 Still Found to be Enforceable

Bath Rugby Club has been told by the High Court that a restrictive covenant preventing development must be observed, even though it is not obvious exactly which land benefits.

The case, Bath Rugby Ltd v Greenwood & Ors (pre-1926 restrictive covenants affecting land) [2020] EWCH 2662 (Ch), involved the proposed development of a new 18,000-seater stadium by Bath Rugby Club at their ground in the centre of Bath, known as the Rec. The plans included riverside regeneration, community use and extensive parking. Much of the Rec is surrounded by residential properties. 


Covenants created before 1 January 1926, when the Law of Property Act 1925 came into force, need to be shown to be annexed to the land in question in order for them to be binding on successive owners of the property.

The land at the Rec, held by Bath Rugby Club on a long lease is subject to a restrictive covenant for the benefit of the Bathwick Estate. The covenant, dated 6 April 1922, states that nothing may be built on the land “which may be or grow to be a nuisance and annoyance or disturbance or otherwise, prejudicially affect the adjoining premises or the neighbourhood”. 

Bath Rugby Club asked the court for a declaration that the covenant was unenforceable because the land was not clearly identified in the 1922 conveyance, which did not contain a plan, and the covenant could not therefore be considered to be annexed to the adjoining land.

Local residents opposed the claim.

The decision

The High Court dismissed Bath Rugby’s application, finding that the covenant was enforceable. The benefit of the covenant was annexed to the land and could be relied on by those living near the Rec in properties that had formed part of the Bathwick Estate when the 1922 conveyance was entered into.

The conveyance gave the benefit of the covenant to the covenantee and “his successors in title and assigns”. Inclusion of the word “title” was held by the court to suggest the intention to annex the benefit of the covenant to the land and not just to the covenantee.

Bath Rugby claimed that it was not easy to identify the land which benefits from the conveyance, so the covenant could not be enforceable. However, the court found that the land that was described in the conveyance could be identified by looking at extrinsic evidence. It was not a requirement that the land had to be easily identifiable. It was simply necessary that the land could be identified from other evidence at the time the covenant was entered into.

What this means for landowners

The case has implications where older covenants exist, meaning that extensive research may need to be done to establish whether the benefit does still apply to land referred to in conveyances dated pre-1926.

For developers, it is a warning that even where planning permission is obtained, it may still be possible for developments to be prevented by the enforcement of restrictive covenants.

Contact us

At RSW Law we have in-depth property law experience. If you have any queries regarding a restrictive covenant and you would like to speak to a legal expert, please telephone us on 020 3146 2989, email us at or fill in our contact form

The legal content provided by RSW Law Limited is for information purposes only and should not be relied on in any specific case without legal or other professional advice.

 Copyright is owned by RSW Law Limited and all rights in such copyright are reserved. Material is not to be reproduced in whole or in part without prior written consent.