Land formerly part of estate — Parcels of estate sold off — Covenant to restrict one dwelling-house on each plot of land — Defendant seeking to build second house on plot — Plaintiffs owners of nearby house seeking to enforce covenant — Whether benefit of covenant annexed to plaintiffs’ land — Whether restrictive covenant against building obsolete — Judgment for plaintiffs
The plaintiffs were the freehold owners of 2.25 acres of land and premises known as “Fairacre”, 54 Camden Road, Chislehurst, Kent. The land was formerly part of the Camden Park Estate, which was a well defined area of approximately 124 acres purchased by W in 1890. He began to sell off parcels of the estate from 1894 subject to restrictive covenants. The defendant’s land, which until their purchase, was part of the garden of “Camla”, at 56 Camden Park Road, was subject to covenants contained in a conveyance made on April 14 1938 between the defendants’ predecessors in title and the then vendors, viz the estate’s trustees. Clause 3 stipulated that the purchaser was “not to erect more than one house on the said land”. The covenant was expressed to be made with the “vendor, his heirs executors administrators and assigns and other owners for the time being of all or part of the Camden Park Estate”.
The plaintiffs sought to enforce the covenant against the defendant who had obtained planning permission for the erection of a dwelling-house in the garden of Camla. By section 78(1) of the Law of Property Act 1925, covenants relating to land are deemed “to be made with the covenantee and his successors in title … and shall have effect as if such successors and other persons were expressed … In connection with covenants restrictive of the use of land `successors in title’ shall be deemed to include the owners and occupier for the time being of the land of the covenantee intended to be benefited”.
Held Judgment for the plaintiffs.
1. In establishing whether the benefit of the covenant was annexed to the plaintiffs’ land, the court had to look at the rest of the schedule containing the covenants to divine the parties’ intention.
2. There were very clear and discernible pointers that the covenants were intended to benefit the estate.
3. Although the benefit of the covenant was not expressly annexed to each and every plot on the estate, it would not have been expressly assigned if it had already passed under section 78(1). It was common ground that that section applied to covenants which touched and concerned the land, as did all the covenants in the schedule.
4. It was also clear that the value of Fairacre in 1938 would have been severely affected by breach of those covenants.
5. Section 78 achieved annexation unless on the proper construction of the conveyance, the covenant was purporting to do something else, eg to annex the covenant to a diminishing estate.
6. Further, the vendors were selling in their capacity as trustees so that by necessary implication the land was that of the estate with regard to which the covenants applied by touching and concerning the vendors’ land.
7. The plaintiffs did not have the burden to discharge that in 1938 the parties had intended that it should apply to each and every part of the estate. The plaintiffs had merely to show that the covenant was one which touched and concerned the land and, on construction, they were not excluded from enforcing it.
8. Whether the covenant had become obsolete because of a change in the neighbourhood was a question of fact in each case. In the present case, the heavy burden on the defence to show a change in the neighbourhood had not been discharged.
Robert Wakefield (instructed by Gough Clinton & Broom, of Welling) appeared for the plaintiffs; Benjamin Levy (instructed by Davies Arnold Cooper) appeared for the defendant.
