Restrictive covenant – Discharge or modification – Objections – Applicants seeking discharge or modification of restrictive covenant to permit construction of second dwelling on plot – Owners of nearby land objecting – Whether entitled to be admitted as objectors – Whether having right as original covenantee – Whether entitled as owners of land to which benefit of covenant annexed – Objectors not admitted
In 2007, the applicants applied, under section 84(1) of the Law of Property Act 1925, to discharge or modify a restrictive covenant that affected their property in order to enable the construction of a further dwelling in the curtilage of their existing house. They had acquired the property in 1998. The covenant in question was contained in a 1991 transfer of the property by the then owner, G, to the applicants’ precedessor in title. The transfer had been lost but the Land Registry entry described the land transferred as forming “part of the land comprised in a Deed of Gift dated… 1975” in G’s favour and stated that the covenant was to benefit “the retained land or any part thereof”. The deed of gift had also been lost.
Subsequent to the 1991 transfer, G had transferred a nearby area of woodland and agricultural land (the orange land) and a house and buildings (the green land) to the trustees of a family settlement of which he was the life tenant, although he continued to occupy the land. He had then repurchased the green land from the trustees in 2004.
Both G and the trustees objected to the application to discharge or modify the restrictive covenant. They claimed the right to object as the owners of land to which the benefit of the covenant was annexed by the 1991 transfer. G further claimed to be so entitled: (i) in his capacity as the original covenantee entitled to enforce the covenant or to maintain a claim for nominal damages against the original covenantor for its breach; and (ii) under section 78(1) of the 1925 Act, as the occupier of the trustees’ land or as a person deriving title under them by reason of his beneficial interest as tenant for life. A hearing was held to determine whether G or the trustees should be admitted as objectors.
Decision: The objectors were not admitted.
(1) G could not claim to be the original covenantee for the purpose of enforcing the covenant against a successor in title of the original covenantor. Under the rules relating to the transmission of the benefit and burden of a restrictive covenant, G had ceased to be the original covenantee when he disposed of the orange and green land in the 1990s; although he had subsequently repurchased the green land, there was no reason in principle why that should place him in any better position as to the enforcement of the covenant than his immediate predecessor in title or a purchaser who had not previously owned the land. The power to enforce surrendered by G when he sold the house and buildings could not subsequently be revived: London CC v Allen [1914] 3 KB 642 distinguished. Moreover, even if G could claim to be the original covenantor, he would still have no entitlement unless the covenant had been imposed for the benefit of the green land and he could show that it was capable of being benefited by the covenant. There was insufficient evidence to show that the green land formed part of the “retained land” referred to in the 1991 transfer or that it could benefit from the restrictions.
(2) Consequently, neither G nor the trustees could enforce the covenant unless its benefit had been annexed to relevant land. The benefit of a covenant would be annexed only to such land as was both identified in the conveyance by express words or necessary implication as intended to be benefited and was described in such terms as enabled it to be easily ascertained from other evidence: Crest Nicholson Residential (South) Ltd v McAllister [2004] 2 EGLR 79; [2004] 24 EG 150 applied. The words “the retained land” in the 1991 transfer did not sufficiently identify the land to be benefited as the orange and green land. Since the Land Registry entry referred to the land conveyed as forming part of the land comprised in a 1975 deed of gift, and the deed of gift had been lost, it was impossible to establish what land was included, nor was it implicit that the “retained land” was the whole of it or, if a part of it, which part. There was nothing in respect of the orange or the green land that would enable a purchaser of the application land readily to ascertain what the retained land was. Accordingly, the covenant was not annexed to any land and neither G nor the trustees could enforce it by virtue of their ownership of the orange or green land, nor could G rely on section 78(1) to enforce it.
(3) G could not be admitted to object to the application as an original covenantee who could maintain a claim for nominal damages against the original covenantors. The power of the Lands Tribunal to discharge or modify a covenant, which extended to “any freehold land affected by a restriction”, did not extend to a covenant that was enforceable in contract only, since there was no freehold land that was affected in any way that was relevant to the right of the covenantee. Therefore, where an application under section 84 was made, only a person appearing to have the benefit of the covenant by virtue of an interest in the application land was entitled to be admitted as an objector, and a person with a purely contractual right could not object.
Martin Hutchings (instructed by IBB Solicitors, of Uxbridge) appeared for the applicants; Daniel Gatty (instructed by Richard Wilson & Co, of Goring-on-Thames) appeared for the objectors.
Sally Dobson, barrister
