Real Property Update: October 2017

Editors Comment

Kerry Bretherton QC

In this edition of the Tanfield’s Real Property Newsletter, Nicola Muir has considered some of the complex issues which can arise when a landowner wants to build on land which is subject to a restrictive covenant. The number of recent reported cases on this subject illustrates just how often problems can arise in determining whether a restrictive covenant will prevent development. Nicola practices in all areas of real property, as well as landlord and tenant and was described as “bright and commercial in her advice” in Legal 500 2017.

The case studies are provided by Gemma de Cordova, an experienced property litigator, who also sits on the Bar Council. Gemma has highlighted some interesting recent judgements on rights of way, overage and restrictive covenants.

Restrictive Covenants – can I build a house in the garden?

The lure of profit can make the construction of a new house in the back garden a tempting prospect. Surely with the constant cry for new homes, such development should be encouraged? Unfortunately, even if planning permission can be obtained for the construction of a “starter-home” in the grounds, it is not uncommon to find a restrictive covenant registered against the title which prohibits the erection of more than one dwelling-house on the plot. “Nimby” neighbours can be all too keen to rely on such covenants to try and stop the proposed works.

The burden of a restrictive covenant runs with the land provided it is annexed to the land which it was intended to benefit. Successors in title will, therefore, be bound by it. However, the fact that there is a restrictive covenant recorded against the title does not necessarily mean that it will prevent the development.

Read the full article here.

October Case Summaries

Lea v Ward [2017] EWHC 2231 (Ch) – Deputy High Court Judge Lance Ashworth QC

Rights of Way, Interpretation, Nuisance

The High Court held that the most natural reading of a deed granting a right of way “over the track or way” was to limit the right of way to the track that was actually in use at the time of the grant in 1979. The claim concerned the existence, location and in particular, the width of a right of way. The Claimant sought injunctions and damages for interference.

Read the full summary here.

Sparks v Biden [2017] EWHC 1994 (Ch) – His Honour Judge Davis-White QC

Option Agreements, Implied Terms, Overage

A term would be implied into an option agreement, requiring the purchaser/developer of a plot of land to sell the properties that he had newly constructed, within a reasonable period of time, so held the High Court. The clause was necessary as a matter of business efficacy and without it the option agreement lacked commercial coherence. The Court also deemed the clause to be so obvious that it went without saying. (Marks & Spencer PLC v BNP Paribas Securities Services [2015] UKSC 72; [2016] AC 742 considered).

Read the full summary here.

Signature of St Albans (Property) Guernsey Ltd v Wragg [2017] EWHC 2352 (Ch) – HHJ Paul Matthews

Restrictive Covenants

The Court determined that restrictive covenants created by two conveyances dating back to 1910 continued to affect the Claimant’s property and were in principle enforceable by injunction by any or all of the Defendants against the Claimant.

Read the full summary here.