Restrictive covenant – Modification – Section 84(1)(a) and (c) of Law of Property Act 1925 – Restriction requiring consent of vendor to alterations – Modification sought to prohibit alterations or additions not in keeping with scale, design and character of neighbouring properties – Whether modification permissible where restriction obsolete owing to non-existence of vendor – Whether proposed restriction capable of enforcement – Application refused
The applicant owned a residential property that dated from 1923 and formed part of an extensive estate. The property was affected by a restrictive covenant, which was contained in a 1981 transfer between the estate company, as vendor, and the applicant’s predecessor in title, as purchaser. The covenant prohibited any alterations to be made to the property without the vendor’s prior written approval of the plans. In 1984, the estate company conveyed its remaining freehold interests in the estate to another company, since when it had been dissolved.
The applicant wanted to ensure that the quality of the estate was upheld. She was concerned that the new company was demanding and receiving payments in return for the grant of approval for alterations to estate properties that were affected by similar covenants. In an application to modify the covenant, she relied on ground (a) of section 84(1) of the Law of Property Act 1925, that the restriction was obsolete, and on ground (c), that no injury would be suffered by any person entitled to the benefit of the covenant so far as it required the approval of plans by “the vendor”. She relied on the fact that the estate company no longer existed and submitted that the 1984 transfer had not been effective to give to the new company the power to enforce the restrictions on her property or on others to which similar restrictions applied. She sought to reword the covenant to prohibit alterations or additions that were not “in keeping with the scale, design and character of the neighbouring properties”. There were no objections to the application.
Held: The application was refused.
Assuming, in the absence of argument, that there was no “vendor” for the purposes of the restriction, the applicant’s application was problematical. Where a restriction prohibited works without the consent of a party that no longer existed, that restriction could be rendered absolute or obsolete, depending on the construction of the instrument in question: Crest Nicholson Residential (South) Ltd v McAllister [2002] EWHC 2443 (Ch); [2003] 1 EGLR 165 applied. If, on a proper construction of the transfer, the restriction had become absolute, it was not obsolete; if it no longer applied, it was difficult to see how it could properly be modified so as to revive it. Neither of those effects assisted the applicant, who sought a modification that required alterations to be in keeping with the estate and prohibited redevelopment.
Moreover, it would be inappropriate for the tribunal to impose the proposed modification. The applicant’s suggested formulation would present insuperable problems of enforcement. What might or might not be in keeping would effectively be a subjective judgment on which different views could reasonably be held. In the absence of an arbiter of what was in keeping, the provision was so fraught with potential problems of implementation that it should not be imposed. It would not be appropriate for the tribunal, in the exercise of its discretion, to impose a new restriction that could give rise to disagreement and possible litigation.
The applicant appeared in person; there were no objectors.
Sally Dobson, barrister
