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Brian owns two shops on opposite sides of Harbour Street in the bustling town of Seaview. He runs his fishmonger's business from one shop and has always let out the other, although he has now decided to sell it to a developer. In the transfer, he includes a covenant stating, "The premises shall not be used as a fishmonger." Tim is a fishmonger looking to purchase the shop from the developer to set up a rival business to Brian’s. Which of the following statements best describes the legal position?
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Tim would not be bound by the covenant because it does not touch and concern the covenantee's land. For a restrictive covenant to be enforceable against successors in title, it must "touch and concern" the land, meaning it must benefit the land retained by the covenantee. In this scenario, the covenant is designed to prevent competition with Brian’s business rather than to benefit the land itself. The benefit that Brian’s business might derive from such a restriction is minimal and not directly related to the use or enjoyment of the retained land. Therefore, the covenant does not meet the criteria for touching and concerning the land, making it unenforceable against Tim.
Key Point: For a restrictive covenant to bind successors in title, it must touch and concern the land. This ensures that the covenant benefits the land itself and not just the personal interests of the original covenantee. If a covenant does not meet this requirement, it will not be enforceable against future owners of the servient land.
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