A workshop model based upon Whitgift Homes v Stocks [2001] 48 EG 130 (CS) (discussed by Sandi Murdoch in
The present owner of house P (the defendant), having started to build in breach of the covenant, is now being sued by the present owners of the other houses (the claimants). The defendant contends that, because the covenants make only the vaguest reference to the development site, not one of the claimants can identify his house as a property that was intended to be benefited.
The owners of houses Q-Z claim that the vagueness of the covenants has effectively been corrected by section 78 of the Law of Property Act 1925, which, as construed in Federated Homes Ltd v Mill Lodge Properties Ltd [1980] 1 EGLR 113, operates to annexe the benefit of the covenant to their respective houses. However, because of the chronological order of the initial sales it is common ground (as it was in Whitgift) that that argument is not open to the other claimants. Their case accordingly depends upon whether the covenants were given in the context of a building scheme (or scheme of development as these are now frequently called).
Assuming that the remaining facts broadly correspond with those found in Whitgift, it seems that the claims relating to houses A-O will fail because those claimants cannot point to a defined area within which the alleged scheme was intended to operate. The claims relating to houses Q-Z will succeed for the (annexation) reason advanced by their owners.
By way of comment, it may be observed that although the requirements of a building scheme have been progressively relaxed since the days of Elliston v Reacher [1908] 2 Ch 374, the courts now seem to have drawn a line when it comes to poor identification of the site of the scheme. A practical point to emerge is that a developer who decides to readvertise should ensure that his later brochures should not be inconsistent with any intended code of local law set out in the first promotion.
As to section 78, it is suggested that a puzzle remains to be solved. The action in Federated Homes was brought against the original covenantor. Why, in Whitgift, was it assumed, apparently without argument, that the Federated Homes decision necessarily applied to actions against successors? Readers’ views will be most welcome.
Related item:
A workshop model based upon Whitgift Homes v Stocks [2001] 48 EG 130 (CS) (discussed by Sandi Murdoch in A defining moment Estates Gazette 19 January 2002, p123) can conveniently start with an untidy 1930 residential development, culminating in the sale of houses A-Z (please note, in that order) to private buyers over a period of two years. Each buyer gave to the developer an identical covenant not to enlarge his house beyond certain limits. All the houses have since changed hands at various times, on each occasion with no express assignment of the benefit of the covenant.
The present owner of house P (the defendant), having started to build in breach of the covenant, is now being sued by the present owners of the other houses (the claimants). The defendant contends that, because the covenants make only the vaguest reference to the development site, not one of the claimants can identify his house as a property that was intended to be benefited.
The owners of houses Q-Z claim that the vagueness of the covenants has effectively been corrected by section 78 of the Law of Property Act 1925, which, as construed in Federated Homes Ltd v Mill Lodge Properties Ltd [1980] 1 EGLR 113, operates to annexe the benefit of the covenant to their respective houses. However, because of the chronological order of the initial sales it is common ground (as it was in Whitgift) that that argument is not open to the other claimants. Their case accordingly depends upon whether the covenants were given in the context of a building scheme (or scheme of development as these are now frequently called).
Assuming that the remaining facts broadly correspond with those found in Whitgift, it seems that the claims relating to houses A-O will fail because those claimants cannot point to a defined area within which the alleged scheme was intended to operate. The claims relating to houses Q-Z will succeed for the (annexation) reason advanced by their owners.
By way of comment, it may be observed that although the requirements of a building scheme have been progressively relaxed since the days of Elliston v Reacher [1908] 2 Ch 374, the courts now seem to have drawn a line when it comes to poor identification of the site of the scheme. A practical point to emerge is that a developer who decides to readvertise should ensure that his later brochures should not be inconsistent with any intended code of local law set out in the first promotion.
As to section 78, it is suggested that a puzzle remains to be solved. The action in Federated Homes was brought against the original covenantor. Why, in Whitgift, was it assumed, apparently without argument, that the Federated Homes decision necessarily applied to actions against successors? Readers’ views will be most welcome.
Related item:
PP 2003/2
