Restrictive covenant – Discharge or modification – Objections – Appellant owned property on estate formerly subject to trust – Property affected by restrictive covenant contained in 1956 conveyance – Appellant applying for discharge or modification of covenant – Whether covenant previously released pursuant to proviso in 1956 conveyance – Whether personal representatives of original vendor capable of exercising power of release – Application dismissed
The applicant owned certain land on an estate in London SE3. That land was the subject of a restrictive covenant, contained in a 1956 conveyance, which prohibited the use of the property for any purpose other than as a sports ground or for the erection of detached houses for use as private residences, and which required the plans for any such building first to be submitted to the vendor’s surveyor for approval. Clause 2 of the conveyance contained words of annexation making the covenant enforceable by “the owner or owners for the time being of the property now comprised and known as the … Estate”. It also contained a proviso under which the restriction could be released by the “Vendor”, defined to include “the estate owner or owners for the time being of property for the time being remaining subject to the trusts of the present settlement or any future re-settlement of the… Estate”.
The applicant applied to discharge or modify the covenant pursuant to section 84 of the Law of Property Act 1925. The first objector to that application was a company which was the registered freehold proprietor of certain roadways on the estate. The other two objectors were individuals who owned residential properties on the estate and were shareholders on the first company. The objectors claimed to have the benefit of the restriction as successors in title to the trustees of the estate, who had been parties to the 1956 conveyance. By that time, the trust was no longer in existence.
The applicant contended that the restriction had been released, pursuant to the proviso to the 1956 conveyance, by a deed made in September 2013 between the executors of the estate, namely the “Vendor” described in the 1956 Conveyance, and the applicant. The objectors contended that, on the proper interpretation of the proviso, the executors were no longer entitled to release the restrictions once the trust came to an end.
Held: The application was dismissed.
The word “Vendor”, on its true construction, could not extend to the Vendor’s personal representatives. It could not implicitly include his personal representatives. The relevant phraseology contained in the 1956 conveyance was carefully and deliberately phrased by the draftsman. It defined the persons entitled to exercise the proviso in strict terms and limited the class to the “Vendor” as defined. The word “Vendor” meant precisely what it said and was intended to be personal to the Vendor. Had the parties intended the term “Vendor” to be extended to the original vendor’s personal representatives, then this could have been done by a specific and clear definition to that effect. There was extended definition and it was not possible to imply one; accordingly, the term “Vendor” meant precisely what it said.
Read according to the general sense of the power of release contained in the proviso, its context and the presumed intention of the parties at the time, the power of release pointed to the future so that it only allowed the Vendor to retain flexibility in terms of stipulations on future sales. The words of annexation in clause 2 suggested that the right to enforce the restriction was enjoyed by all plot owners “for the time being” within the estate; “for the time being”, in that context, meant the same as “from time to time”. That had to have some bearing on the limitation on the power of release, which was clearly limited in terms of those who could exercise it. The many plot owners deriving title from the Vendor could not do so.
Further, the express words of the proviso made it clear that it was the purpose and intent of the parties to the 1956 conveyance that the proviso should only be exercisable for as long as the trusts of the then current settlement of the estate, or any future re-settlement of it, remained in existence. The express purpose of the proviso was to reserve certain powers on future disposal of the property of the estate to the owner for the time being within the estate remaining subject to the trusts. On its express terms, that purpose ceased to be effective on cessation of the trust. Reading the proviso in that way was consistent with its purpose and content, which was to reserve powers to the Vendor personally in respect of other property within the estate not subject to the restriction. Accordingly, the applicants’ land did not fall within the scope of the proviso.
Timothy Morshead QC (instructed by Terry Macey) appeared for the applicant; Tim Mould QC (instructed by Blackheath Cator Estate Residents Ltd) appeared for the first objector; the other objectors appeared in person.
Sally Dobson, barrister
Click here to read transcript: Derreb v White
