Restrictive covenant – Conveyance of property – Requirement for vendor’s consent to alterations – Claimant wanting to alter property – Whether defendants’ consent required to alterations as successors in title of vendor – Whether covenant requiring consent of original vendor only – Whether covenant discharged on death of original vendor – Claim allowed
In 2007, the claimant purchased the freehold of a flat-roofed bungalow set in a substantial plot. The plot had originally formed part of the garden of the adjoining property until, by a conveyance dated 1966, the then owner had conveyed it to a predecessor in title of the claimant. The conveyance began by giving the full name of the then owner and provided that she was to be “hereinafter called ‘the Vendor’”. The terms of the conveyance permitted the building of only “one bungalow… in accordance with plans and elevations to be first submitted to and approved by the Vendor in writing”. It further contained a restrictive covenant under which the bungalow could not be enlarged or altered without similar approval and consent by “the Vendor”. The defendants purchased the vendor’s retained property from her executor after her death in 1977.
In 2005, the then owner of the bungalow obtained planning permission to replace the flat roof with a pitched roof. The defendants objected, claiming that they had the benefit of the restrictive covenant in the 1966 conveyance. The owner of the bungalow brought proceedings for declaratory relief, under section 84(2) of the Law of Property Act 1925, contending that the reference in the conveyance to “the Vendor” had meant the original vendor only and did not include her successors in title, such that the restrictive covenant had been discharged upon her death in 1977. The defendants disputed that interpretation and further argued that even if the covenant did require the consent of the original vendor, her death had not discharged the covenant but had instead rendered it absolute because no dispensing consent was available. The claimant in the proceedings was substituted as claimant upon purchasing the bungalow.
Held: The claim was allowed.
Where a professionally drafted document such as a conveyance contained a definition of a specific term, it would be necessary to advance strong and cogent reasons before departing from such a definition or giving different meanings to it in different places. However, there was no rule of law that a departure from the defined meaning would be justified only where commercial absurdity arose from applying that meaning. The document or conveyance fell to be construed as a whole: City Inn (Jersey) Ltd v Ten Trinity Square Ltd [2008] EWCA Civ 156; [2008] 10 EG 167 (CS) considered.
The reference to “the Vendor” in the restrictive covenant had meant only the original vendor and did not include her successors in title. The 1966 conveyance expressly referred to the successors in title of the vendor and purchaser where they were intended to be included: Mahon v Sims [2005] 3 EGLR 67; [2005] 39 EG 138 distinguished. The terms of the conveyance were clear and it was not necessary to apply a different construction in order to make sense of its provisions. The situation in which consent was to be given by a person who no longer retained any interest in the benefiting land was not an unknown phenomenon and was not without commercial purpose since, for example, it prevented a multiplicity of covenants from being required in the event of a sub-sale of various parts of the benefiting land. Such an outcome did not produce absurdity, nor did it necessarily flout business common sense. Although there might be greater commercial merit in extending the definition of the person who could give consent, it was not for the court to rewrite the contract that the parties had made. Nor did a requirement for the consent of a third party fail to fulfil the requirement that a restrictive covenant should “touch and concern” the land in the sense of being imposed for the benefit of land retained by the vendor.
Consequently, approval and consent for alterations to the bungalow could be given only by the original vendor. The death of that person had resulted in the discharge of the restrictive covenant. Construed as a whole, the relevant clause imposed no restriction in the absence of the original vendor. The exception to the restriction, namely the dispensing power, was so fundamental to the prohibition that should the exception be discharged, the prohibition would also be discharged. The parties to the 1966 conveyance could not have intended that, following the vendor’s death, the bungalow could never be enlarged or altered: Crest Nicholson Residential (South) Ltd v McAllister [2004] EWCA Civ 410; [2004] 2 EGLR 79; [2004] 24 EG 150 applied.
Nicholas Jackson (instructed by Halliwells, of Liverpool) appeared for the claimant; George Newsom (instructed by Stones, of Exeter) appeared for the defendants.
Sally Dobson, barrister
