Restrictive covenant – Discharge or modification – Law of Property Act 1925 – Covenant against making alterations to residential property save with consent of “the Vendor” – Application to discharge covenant – Whether covenant becoming obsolete on death of original vendor so as to justify discharge under section 84(1)(a) – Whether successors in title of vendor retaining power to consent to alterations – Application allowed
The applicants obtained planning permission to develop their residential property by demolishing the existing two-storey house and replacing it with a larger dwelling. They applied to the Upper Tribunal, under section 84(1) of the Law of Property Act 1925, to discharge or modify a restrictive covenant affecting the property so as to enable them to implement the planning permission. The covenant was contained in a 1962 conveyance of the property from a vendor who, at that time, lived in the property next door and who was selling to a friend; the restrictions prohibited the making of any alterations or the erection of any additional buildings “without the previous consent in writing of the Vendor” or doing anything that might be a nuisance or annoyance “to the Vendor or to the owners or occupiers of the adjoining property”.
The original vendor had since died and an issue arose as to who, if anyone, was entitled to enforce the covenant. The applicants contended that the original vendor was the only person with the right to give or withhold consent to alterations and that, following her death, the restriction had become obsolete such that it should be discharged under section 84(1)(a).
Objecting to the application, the applicants’ neighbours argued that the development required their consent as the successors in title of the original vendor. In the alternative, they contended that, if the required consent was that of the original vendor herself, then the restrictions against building and alterations had become absolute on her death.
Held: The application was allowed.
(1) The references to “the Vendor” in the restrictive covenant should not be interpreted as extending to the original vendor’s successors in title. The language used in the covenant against alterations, referring only the consent of “the Vendor” was to be contrasted with that in the covenant against causing a nuisance or annoyance, which was expressed to be for the benefit of “the Vendor or the owners or occupiers” of the adjoining property. The difference in language indicated a difference in substance; where the draftsman used the expression “Vendor”, that meant the original vendor alone. There was nothing to suggest an error in the drafting of the restriction or that the original contracting parties intended control over development of the property to be vested in perpetuity in the vendor’s successors in title. While it was unusual to find a covenant that gave to the original vendor a power to maintain control over the land after she had sold it, such a covenant was not unheard of. It was entirely possible that the vendor would have wanted to control the form of development carried out on the property even after she disposed of her interest in the neighbouring property. Further, while the purchaser under the 9162 conveyance might have been prepared to rely on the reasonableness of her then neighbour and friend in considering proposals for future building works, she might not have been prepared to agree that, after the original vendor died, successors in title should have power to withhold consent to any building works, particularly bearing in mind the absence of any provision against unreasonably withholding consent. The language of the restriction should therefore be given its literal effect: Crest Nicholson Residential (South) Ltd v McAllister [2004] EWCA Civ 410; [2004] 1 WLR 2409; [2004] 2 EGLR 79 and Churchill v Temple [2010] EWHC 3369 (Ch); [2011] 1 EGLR 73 considered.
(2) Read literally, the covenant would become an absolute bar to any future building works following the death of the original vendor, because no consent could be obtained from “the Vendor”. However, it was not appropriate to construe it in that way, since such a construction would put subsequent owners of the original vendor’s property in the same position as if the covenant had in fact been with her successors, which was not the parties’ intention. Such a permanent and absolute control over the development of adjoining property was such an improbable arrangement that only clear language would justify such an interpretation. The better construction, which was consistent with the language of the instrument and the known relationship between the parties, was that the covenant was intended to lapse and become unenforceable on the death of the original vendor. The restriction should therefore be discharged under section 84(1)(a) of the 1925 Act as being obsolete.
Lawrence Power (instructed by direct access) appeared for the applicants; Adam Chamber (instructed by Nigel Owen & Co, of Chislehurst) appeared for the objector, Johanna Broad.
Sally Dobson, barrister
Click here to read transcript: Re Cook and another’s application
