Regular updates on relevant case law and legislation - October 2009

CHAPTER 14 RESTRICTIVE COVENANTS

Remedies for the breach of a restrictive covenant (page 333)

In Dennis v Davies [2008] EWHC 2961 (Ch); [2008] 49 EG 76 (CS), the question was whether an extension to a building which would partially or totally obscure the views of the river from properties on the estate was in breach of a covenant which said

nor to do or suffer to be done on the Plot or any part thereof anything of whatsoever nature which may be or become a nuisance or annoyance to the owners or occupiers for the time being of the Estate or the neighbourhood

The test was an objective one, judged on common sense (there’s a first) and asked whether

‘reasonable people, having regard to the ordinary use of the Claimants' houses for pleasurable enjoyment, be annoyed and aggrieved by the extension? To adopt the words of Lord Justice Lindley, would the extension raise an objection in the minds of reasonable men, and be an annoyance within the meaning of the covenant? Lastly, would the extension reasonably trouble the mind and pleasure, not of a fanciful person or of a skilled person who knows the truth, but of the ordinary sensible English inhabitant of the Claimants' houses?’

On the facts the building constituted an annoyance.

Box D2 When making the covenant the original parties must have intended that the benefit should run with the land (page 318)

Margerison v Bates [2008] EWHC 1211 (Ch) is a case similar to City Inn (Jersey) Ltd v Ten Trinity Square Ltd [2008]. In 1966 Swaynes Jumps and Priors Knock were under the common ownership of Jennie Fisher Horn. She had sold off Swaynes Jumps with permission to build a bungalow. Any alterations to the bungalow had to have written consent from ‘the vendor’, such consent not to be unreasonably withheld. Jennie Fisher Horn was the vendor. Mr Margerison, the current owner of Swaynes Jumps, wanted to replace the flat roof of the bungalow with a pitched roof. Mr and Mrs Bates, the current owners of Priors Knock, objected. Mr Margerison said that the reference to ‘the vendor’ in the restrictive covenant referred only to Jennie Fisher Horn, not to her successors in title. The court held that the plans could be approved only by Jennie Fisher Horn. The reference to ‘vendor’ did not include the successors in title to the vendor i.e. Mr and Mrs Bates. When looking at the conveyance as a whole, where the draftsman had meant to include the successors in title to the vendor, he had made this quite clear. So, only Jennie Fisher Horn could give consent. Mahon v Sims [2005] 39 EG 138; [2005] 3 EGLR 67; was distinguished because in that case the draftsman had not made any reference to successors in title in the covenant which would allow the court to find a distinction between in the case ‘transferor only’ and ‘transferor and successors in title’. Unfortunately, though, Jennie Fisher Horn had died. Following Crest Nicholson Residential (South) Ltd v McAllister [2004] EWCA Civ 410; [2004] 1WLR 2409 the covenant was held to be discharged. Norwich City College of Further and Higher Education v McQuillin [2009] EWHC 1496 (Ch); [2009] 27 EG 90 (CS) is another case here.

The modification or discharge of a restrictive covenant (page 331)

The Lands Tribunal has now been abolished. Its functions have been transferred to the Lands Chamber of the Upper Tribunal established by the Tribunals, Courts and Enforcement Act 2007 as part of a reorganisation of tribunals to benefit those who use them.

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