Landowners that want to enforce restrictive covenants must show that they have the benefit of the covenants and that the defendant is bound by them. The rules that govern whether the benefit of restrictive covenants can be enforced are tortuous and technical, and depend on whether the benefited and burdened land have changed hands.
Re Hutchinson and another’s application [2009] UKUT 182 (LC); [2010] PLSCS 7 concerned an application for the modification or discharge of restrictive covenants imposed in 1991. The original covenantee lodged an objection with the Upper Tribunal of the Lands Chamber, which had to decide whether the objection was admissible.
The covenantee admitted that there had been a gap in his ownership; he had sold the land that benefited from the covenants because of financial difficulties, and then repurchased it. Consequently, he claimed to be entitled to enforce the covenants in his capacity as the original owner or, alternatively, as a successor in title to the benefited land. Neither argument was successful.
The tribunal decided that he could not claim to be the original covenantee for the purpose of enforcing the covenant against a successor in title to the covenantor because of the gap in his ownership. He ceased to be the original covenantee when he disposed of the land, and the tribunal could see no reason why his reacquisition should revive the benefit of the covenant and put him in a better position than that of his immediate predecessor in title.
Under the rules that govern the transmission of the benefit of restrictive covenants to successors in title, the benefit of a covenant that touches and concerns land will run with the land if the covenant is annexed to it. The benefit of covenants is usually annexed to land by section 78 of the Law of Property Act 1925: Federated Homes Ltd v Mill Lodge Properties Ltd [1980] 1 EGLR 113. However, section 78 operates only where the land that benefits from the covenants can be identified: Crest Nicholson Residential (South) Ltd v McAllister [2004] EWCA Civ 410; [2004] 2 EGLR 79.
Unfortunately, the Land Registry does not register the benefit of restrictive covenants in its registers of title. The title to the land burdened by the covenants indicated that it once formed part of a larger holding comprised in a deed of gift made in 1975. However, the transfer that imposed the covenants did not identify the remainder of the holding as being the land that benefited from them and, even if it had, the deed of gift had been lost.
This made it impossible to identify the land that benefited from the covenants. Consequently, the tribunal applied the rule in Crest Nicholson and rejected the covenantee’s argument that he was entitled to enforce the covenants in his capacity as a successor in title to land to which covenants were annexed. His objection to the discharge or modification of the covenants was therefore inadmissible.
The decision highlights the importance of identifying land that benefits from restrictive covenants in the instrument that imposes them, and of preserving pre-registration deeds after registering title, to prove the landowner’s entitlement to enforce restrictive covenants in his favour.
Allyson Colby is a property law consultant
