Ms Sugarman was the freehold owner of land known as Ruston Withdean Avenue, Brighton. Sugarman sought a declaration that the defendants were not entitled to the benefit of convenants set out in a schedule attached to the conveyance of Sugarman's property. Alternatively Sugarman sought a declaration that the defendents were not entitled to enforce the covenants.

Sugarman had purchased the land from Mrs Hart. The land originally comprised a cottage with a large garden and orchard. Hart sold off parts of the land in three sections between 1953 and 1957 and retained the cottage herself. In two of the conveyances, the purchaser covenanted to (i) not erect any building on the land save a selling house and garage, such dwelling house and garage to be erected only in accordance with plans approved by the vendor or the vendor's surveyor, and (ii) to erect fences on certain sides of the land conveyed. The third conveyance did not impose any fresh covenants. The defendents derived their title from this conveyance.

Sugarman proposed to demolish the building on her property and to erect eight self contained apartments. Sugarman argued that on the true construction of the above covenant Hart reserved the right to enforce the covenant for the benefit of the parts of the retained land comprised in the 1953 conveyance in her favour as long as they were unsold. In the event that they or parts of them were subsequently sold the benefits of the covenant were not to pass unless it was expressly assigned with the conveyance. Sugarman argued that as there was no express assignment in the third conveyance and as all land had now been sold by Hart the benefit of the covenants had not passed.

The defendents argued: (i) that there had been an assignment by virtue of Section 63 of the Law of Property Act 1925 so that each subsequent conveyance should have read into it an assignment of the benefit of the convenants, and (ii) that the existence of a fencing covenant of a well known form (i.e. to erect and forever after to maintain a wall) shows there was an intention to annex the benefit of that covenant and therefore all the other covenants to Hart's land generally.

Did the benefit of the covenants contained in the original conveyance pass to the defendents?