Problems with covenants affecting land are common and sometimes a dispute can resurface years after it seems to have been settled. In a recent instance, a landowner was successful in reopening the battle over a covenant after persuading the court it was not simply a rerun of an old court case.

The property was subject to covenants dating from 1954, which included one binding on the purchaser ‘not to erect on the piece of land hereby conveyed any buildings whatsoever other than one private dwelling house with proper offices and outbuildings (including at the purchaser’s option a private garage)’.

A dwelling had been built on the land in question, but the current owners wanted to build another house on it. They sought a declaration that the covenant should be removed as it was personal and was not transmitted to later purchasers of the property.

An earlier (1978) application to lift the covenant had been made which had been argued all the way to the Court of Appeal. It concluded that the covenant – which was intended to restrict the building density – did benefit other nearby residents and was thus enforceable.

When the argument came back to court, those opposed to the removal of the covenant argued that the claim should be struck out as it was essentially relitigating the same issue. They contended that the case was an abuse of judicial process and that the legal doctrine of ‘estoppel’ should prevent the rehearing of the arguments.

However, the High Court did not agree that the new application was in effect a rerun of the old case, and thus it could not be dismissed without the specific facts being argued.