The lease contained a covenant that S, his executors, administrators, or assigns would build a brick wall on the property.

The central question was what kinds of covenants will bind an assignee who is not expressly named in the instrument creating the legal estate.

The opinion went on to examine other situations where a covenant benefiting property held other than in fee simple would run with the land and thus compel an assignee to act.

Touch-and-concern is still a principal tool for distinguishing between covenants which must be honored by the assignee of a legal estate, and those which are collateral and thus subject to rules of privity.

[4] While the Law of Property Act 1925 at ss 141 and 142 now uses the phrase "have reference to the subject matter of the lease" it has the same meaning.