The High Court has refused to declare that wording in a 1947 conveyance permitted an estate owner to retrospectively modify restrictive covenants imposed by the conveyance in Neil John Mackenzie v Sharon Shac-Yin Cheun and Infinity Homes & Developments Limited [2022] EWHC 1694 (Ch).
The case concerned properties at 432 and 444 Selsdon Road, South Croydon, which were formerly part of an estate owned by the Whitgift Educational Foundation. 444 was sold in October 1947 and 432 in November 1947. Under the October 1947 conveyance the purchaser of 444 covenanted with the Foundation, for the benefit of its adjoining or adjacent land remaining unsold not to erect any building on the land conveyed save one detached dwelling house and outbuildings and to use the property only as a private residence. It also contained a provision reserving to the Foundation “the right to deal with any of the plots situated upon this estate or any… adjoining or neighbouring land without reference to and independently of these stipulations and also reserve the right to allow a departure from them in any one or more cases”.
It was common ground that the claimant, as owner of 432, had the benefit of the covenant contained in the October 1947 conveyance and – subject to the power reserved to the Foundation – could enforce the covenant against the first defendant as owner of 444. The second defendant held an option to purchase 444 and in March 2020 obtained planning permission to demolish the existing house and construct in its place a block of nine residential apartments.
The question for the court was whether, as the defendants’ claimed, the Foundation was entitled to modify or vary the covenant in the October 1947 conveyance so that if a modification was agreed the covenant would be unenforceable by the claimant, or, as the claimant contended, the provision was intended only to clarify the fact that when dealing with other plots on the estate or any of its adjoining or neighbouring land, the Foundation had no obligation to have regard to the restrictions imposed in the October 1947 conveyance and could elect to depart from those restrictions.
The defendants, having negotiated with the Foundation a modification of the covenant, sought summary judgment against the claimant and a declaration that following the execution of a deed of modification the development of 444 would not breach the October 1947 conveyance. The court’s task, in determining the objective meaning of the provision was to consider the language of the provision in its context, giving such weight as appropriate to all relevant circumstances Wood v Capita Insurance Services [2017] AC 24.
The court agreed with the claimant’s interpretation of the provision: the intention behind the provision was to prevent the creation of a building scheme or system of mutually enforceable covenants in respect of the estate. The words “in any one or more cases” did not allow the Foundation to retrospectively depart from restrictions already imposed and, if it so chose, to release an otherwise burdened property such as 444 from restrictions which previously applied. The application failed.
Louise Clark is a property law consultant and mediator
