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Restrictive covenants – covenant unenforceable because benefited land insufficiently identified
29.10.09
In order to enforce a restrictive covenant, it is necessary to show not only that the burden of the covenant binds the current owner of the burdened land, but also that the person claiming the benefit of the covenant is indeed entitle to enforce it. In the July/August edition of property update, we saw how the wording of a covenant meant that there was no-one left who could enforce it.
This question arose again in Hutchinson, Re 1 Captains Gorse. A covenant was entered into in 1991 between Mr Goddard (as the owner of the benefiting land) and Mr & Mrs Greener (as the owners of the burdened land). The Greeners subsequently sold the burdened land to the Hutchinsons, who wished to build on the land in breach of covenant. The Hutchinsons applied to the Upper Tribunal (Lands Chamber) to discharge or modify the covenant.
Mr Goddard objected to the application. At the time the covenant was imposed in 1991, he owned two pieces of neighbouring land; the “orange land” and the “green land”. The orange land was transferred to the trustees of a family trust in 1998, in whom it remained. The green land was also transferred, to members of Mr Goddard’s family, but was bought back by Mr Goddard in 2004.
Mr Goddard submitted that he was entitled to object to the application. His case was argued on two alternative bases: that he was the original covenantee, and/or that (so far as the green land was concerned) he was a successor in title to the original covenantee.
As original covenantee attempting to enforce against a successor in title to the burdened land, all that it would be necessary for Mr Goddard to prove was that the covenant was taken to protect land retained by him at the time of the transfer, and that the covenant does indeed benefit that land. However, the tribunal ruled that, since Mr Goddard had disposed of both parcels of land in the 1990s, he was no longer able to enforce the covenant as original covenantee against a successor in title to the covenantor. This was so even though he had subsequently re-acquired the green land. The tribunal did not see why he should be in any better position in relation to enforcement of the covenant than his immediate predecessors in title. The power to enforce could not be revived by the sale back to Mr Goddard. In any event, the tribunal thought that the green land was too far away from the Hutchinsons’ land to be capable of being benefited by the restrictions. There was about 300 yards of woodland between the two parcels of land.
In order to be able to enforce the covenant as successors in title, Mr Goddard and the trustees had to show that the benefit of the covenant was annexed to the green and orange land under the 1991 document. The benefit of a covenant is annexed only to such land as is identified in the document imposing the covenant by express words, or necessary implication, as intended to be benefited. The benefited land must be described in terms which enable it to be easily ascertained from other evidence. This is so that a purchaser of the burdened land can identify who has the benefit of the covenants.
The 1991 document merely referred to the land owned by Mr Goddard at the time as “the retained land”. The tribunal held that this was not sufficient. There was nothing in the entry referring to the covenant on the register of title at Land Registry which would enable a purchaser to readily ascertain what the retained land was. On that basis the covenant was not annexed to any land, and therefore neither the trustees, nor Mr Goddard, were able to enforce it as successors in title.
Things to consider
As a general rule, a covenant may be enforced between the original parties, simply as a matter of contract. However, where either the benefited land or the burdened land – or both – has changed hands, the successors in title must show that they are entitled to the benefit and are bound by the burden respectively.
The benefit of a covenant can pass to the current owner of the benefited land in a number of ways, but the most common is for it to be annexed to the land. This may occur expressly, as a result of the document’s drafting, or pursuant to section 78 of the Law of Property Act 1925. For annexation under section 78 to occur, the land intended to be benefited must be easily identifiable – either from a description, plan or other reference in the document itself or from other admissible evidence.
As noted in a previous edition of Property update, much attention is often focused on whether a purchaser of the burdened land is bound by a covenant. However, it is equally important to assess whether the benefit remains enforceable. If the benefited land cannot be sufficiently ascertained, the covenant may be unenforceable.
The above analysis was written by Sarah Allen, associate in Wragge & Co’s Real Estate group.
Wragge & Co’s real estate specialists provide the latest developments in property law – Break clauses, Effect of administration on lease renewal, and Development.
http://www.wragge.com/analysis_5297.asp 2013

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