Restrictive Covenant Was Personal to Original Vendor

The Upper Tribunal (UT) has ruled that a restrictive covenant which required the owners of land to obtain approval from the vendor before a house could be built on it was personal to the original vendor and did not benefit his successors in title.

The land had originally been part of a neighbouring property but had become a separate plot in 1962, when the owner of the neighbouring property sold part of his land. The conveyance contained a number of covenants, including a restrictive covenant which prevented any building other than a dwelling house from being constructed on the land. The covenant contained a number of requirements relating to the design of such a house and required the vendor’s approval to be obtained before building commenced.

A couple who owned the house currently situated on the land applied to the UT under Section 84(1) of the Law of Property Act 1925 for the covenant to be discharged or modified to remove the requirement for approval. Their neighbour, the vendor’s successor in title, objected to the application. The UT considered as a preliminary issue whether the covenant was personal to the original vendor and was therefore now obsolete.

The neighbour argued that several factors indicated that the covenant was intended to benefit the vendor’s successors in title. The land was quite small and immediately adjoined the vendor’s land. The requirements in the covenant were detailed and, if they were not complied with, the vendor could reasonably withhold his approval. The covenant made no provision for what would happen if the vendor died, which the neighbour said indicated that his successors were to retain the benefit of it. If it were personal to him and he had died before the new house was built, a purchaser would have had no control over the development.

The UT noted that the covenant required the approval of ‘the vendor’ and contained no reference to successors in title. It did not require approval of extensions or alterations, and the UT considered that the aim was to give the vendor control of the first building on the plot, which would be built soon after the conveyance, not to extend control into the distant future. The failure to make provision for the vendor’s death also supported the conclusion that he was providing for an event that would affect him personally and was anticipated to happen soon. The vendor’s successors in title were expressly mentioned elsewhere in the conveyance: if the power of approval been intended to pass to successors in title, the conveyance would have said so.

The UT concluded that the covenant was personal to the original vendor and could therefore be discharged because it was obsolete.