Covenant Over Development Void, Rules Court

Deeds of covenant over properties have been a frequent source of litigation over the years and a recent case demonstrates the wisdom of taking particular care to understand the scope and application of any covenants that apply to a property you are considering buying.



The case involved a couple whose house-building plans hit a serious stumbling block in the form of a 50-year-old restrictive covenant and who had to take proceedings in court to establish their right to develop their dream home.



Their house was built on land that had been split from a larger plot and sold in the 1960s. The vendor had continued to live next door and the conveyance contained a restrictive covenant which, amongst other things, forbade any alteration or extension to the new building without her consent. The vendor had long since died and the initial owners of the house had sold the property on, so neither of the parties to the contract that contained the original covenant was involved in the dispute.



The couple obtained planning consent to replace the existing house with a three-storey home. However, they faced objections from their neighbours who argued that, as the successors of the original vendor, the covenant benefited them and the redevelopment could not go ahead without their consent.



In upholding the couple’s case, the Upper Tribunal found that, on a true reading of the covenant, the restrictions it contained lapsed on the original vendor’s death. The benefit of the covenant did not pass to her successors in title and it could not have been intended that, following her death, it would operate as an absolute bar on any future building works.



Covenants such as this one are often considered to be a form of protection for the original vendor of the land and usually lapse when they no longer own the land affected. However, this is not always the case.