Historic Restrictive Covenants and Land Development

Aged restrictive covenants will not necessarily continue to bind the land. A recent application for a declaration that land was no longer subject to restrictive covenants was successful – in spite of an earlier claim by the claimants’ predecessors in title.

In Doberman v Watson (2017)[1], a restrictive covenant dated back to 1954 which prohibited the construction on anything on the land other than a private dwelling house. The claimants were the freeholders, and sought a declaration under s84(2) of the Law of Property Act 1925 that their land was no longer subject to the restrictive covenant as it was purely personal. They wanted to erect a building on their land. The defendants objected, and relied on the restrictive covenant

The court ruled in the claimant’s favour, finding that the restrictive covenant did not bind them because the benefit of the covenant had not been annexed to the defendant’s land in previous conveyances, and neither party’s land formed part of a building scheme with mutually enforceable covenants. The 1954 conveyance stated that the covenant was to “benefit and protect the Vendor's building estate”, but there was no other evidence of a building scheme.

Practitioners will be interested in the jurisdictional issues that arose in a prior hearing in this case (Doberman v Watson [2017] EWHC 1078)[2]. The defendants had applied for summary judgment, or to strike it out on the grounds of res judicata (the principle that limits abusive and duplicative litigation): the Upper Tribunal (Lands Chamber) had already dismissed a similar application back in 1978 by the claimant’s predecessor in title – but under s84(1).

The Lands Tribunal has jurisdiction only under section 84 (1) Law of Property Act 1925 (which allows for the modification or removal of restrictive covenants affecting freehold or leasehold land in some circumstances). However, the civil courts have jurisdiction under both sections 84(1) - and (2) (which provides for determination of the nature, extent and enforceability of a restrictive covenant).

The High Court found in favour of the claimants - it held that no cause of action or issue of estoppel had been disclosed in the case, and there had been no abuse of process so as to justify allowing the application.

Jeremy Cousins QC, sitting as deputy judge, noted that “s84 draws a clear distinction between the functions of the Tribunal and the court in determining disputes as to (i) whether and to what extent a restriction affects land (being a matter for the court under s84(2)), and (ii) whether any such restriction should be discharged or modified (being a matter for the Tribunal under s84(1))”. He added that the machinery established in sub-s(3A) (inserted by amendment under the LPA 1969) would appear to facilitate both the resolution of disputes as to who may oppose any application under s84(1), and the suspension of s84(1) proceedings pending determination by the court upon relevant related questions under s84(2).

He therefore found that the Lands Tribunal did not have jurisdiction over the subject matter which falls within s84(2), nor did it make any decision on such matters - and even if it did, such decision was not final. Furthermore, the Lands Tribunal made no determination on a question raised in later litigation.

The DJ said: “It makes no difference that there may have been a concession in the 1978 Application as to the applicability of the Covenant, because the Tribunal made no decision based upon it; it simply proceeded upon a footing, and thus bound no-one.”

[1] Not yet published
[2] Doberman and another v Watson and others [2017] EWHC 1708



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