Introduction
This essay examines a land law issue concerning Imran, who is contemplating the purchase of The Wreck, a disused playground in the centre of Weatherfield, currently owned by Audrey. Imran’s plans to build a house on the land and allow shrubs to grow beyond the stipulated height raise questions about the enforceability of two restrictive covenants attached to The Wreck since 1985. These covenants, designed to benefit the neighbouring property, The Kabin, prohibit building on The Wreck and limit the height of shrubs to two metres. A further clause specifies that the benefit of these covenants does not pass to subsequent purchasers unless expressly assigned. This essay will analyse whether these covenants are binding on Imran as a potential purchaser, focusing on the rules governing the transmission of covenant benefits and burdens under English land law. The discussion will explore the legal principles of covenant enforceability, the impact of registration, and the significance of the express assignment clause, ultimately advising Imran on his position.
Understanding Restrictive Covenants in Land Law
Restrictive covenants are obligations imposed on land that limit its use, often to protect the value or enjoyment of neighbouring property. In English land law, for a covenant to be enforceable against a successor in title, such as Imran, it must satisfy certain conditions regarding the running of both the burden and the benefit of the covenant. The burden of a covenant runs with the land if it is negative in nature, touches and concerns the land, and was intended to bind successors (Tulk v Moxhay, 1848). The covenants in question—preventing building on The Wreck and limiting shrub height—are clearly restrictive and appear to touch and concern the land by preserving the open nature and visibility for the benefit of The Kabin. Moreover, the deed from 1985 implies an intention for these restrictions to bind future owners, as they were explicitly created “for the benefit of the neighbouring premises.”
However, a critical issue arises with the transmission of the benefit of these covenants, given the successive ownership changes of The Kabin since 1985. The benefit must attach to the dominant land (The Kabin) and pass to subsequent owners for enforcement to be possible. Typically, under common law, the benefit of a covenant runs with the dominant land if it touches and concerns it and there is no indication to the contrary (Federated Homes Ltd v Mill Lodge Properties Ltd, 1980). Yet, Clause (c) of the 1985 deed complicates this by stating that the benefit will not pass unless expressly assigned. This provision requires a closer examination of its legal effect.
Impact of Clause (c) on the Transmission of Benefit
Clause (c) explicitly restricts the automatic transfer of the benefit of the covenants to subsequent purchasers of The Kabin unless it is expressly assigned. Under English law, parties can contractually limit the running of a covenant’s benefit through such provisions, overriding the default rule in cases like Federated Homes. This means that when Rita, the original beneficiary, sold The Kabin to Mavis in 2010 via her will, and later Mavis sold it to Norris in 2017, the benefit of the covenants would not have passed automatically. For Norris, the current owner of The Kabin, to enforce the covenants, there must be evidence of an express assignment of the benefit during these transfers.
Unfortunately, the facts provided do not indicate whether such an assignment occurred. If no express assignment was made, the benefit of the covenants may no longer attach to The Kabin, rendering them unenforceable against Imran. This is a significant risk for Norris, as without the benefit, there is no legal right to challenge Imran’s plans (Rhone v Stephens, 1994). Conversely, if an assignment was documented, Norris could potentially enforce the restrictions. Given this uncertainty, Imran should investigate the title deeds and transfer documents of The Kabin to ascertain the status of the benefit.
Enforceability of the Burden on Imran
Assuming the benefit of the covenants remains with Norris, the next question is whether the burden binds Imran as a potential successor in title to The Wreck. Since The Wreck is registered land (as implied by Audrey being the “registered proprietor”), the burden of restrictive covenants is generally enforceable against subsequent purchasers if properly noted on the title register under the Land Registration Act 2002. Section 29 of the Act protects registered covenants as overriding interests or entries on the charges register, meaning Imran would take the land subject to them unless they were not registered or were overreached.
The fact that the covenants originate from a 1985 deed suggests they were likely entered on the title at the time of Audrey’s purchase. If they appear on the register, Imran would be bound by them upon acquiring The Wreck, irrespective of notice (Land Registration Act 2002, s.29). However, if the covenants were not noted—perhaps due to an administrative oversight—Imran might argue that he takes free of them as a bona fide purchaser for value without notice. Given that this is speculative, it is prudent for Imran to consult the Land Registry to confirm the status of these covenants on The Wreck’s title.
Implications of Imran’s Proposed Actions
Imran’s intention to build a house on The Wreck directly contravenes Clause (a), which prohibits buildings or structures. Similarly, allowing the shrubs to grow to three metres breaches Clause (b), exceeding the two-metre height limit. If the covenants are enforceable—i.e., if the benefit has been assigned to Norris and the burden is registered—Imran risks legal action from Norris for breach of covenant. Remedies could include an injunction to prevent building or to trim the shrubs, or damages for any loss of amenity to The Kabin (Wrotham Park Estate Co Ltd v Parkside Homes Ltd, 1974).
Furthermore, Imran should be aware that even if the covenants are currently unenforceable due to lack of assignment, a future express assignment by Norris to a subsequent owner could revive the benefit, potentially allowing enforcement at a later date. This introduces an element of long-term uncertainty. Alternatively, Imran might consider negotiating with Norris for a release or modification of the covenants, though this depends on Norris’s willingness and may involve financial compensation.
Conclusion
In advising Imran, several key points emerge from this analysis. First, the enforceability of the covenants hinges on whether the benefit was expressly assigned during the transfers of The Kabin from Rita to Mavis and then to Norris, as stipulated by Clause (c) of the 1985 deed. Without such assignment, Norris lacks standing to enforce the covenants. Second, assuming the benefit is retained, the burden likely binds Imran if noted on The Wreck’s registered title, given the protections of the Land Registration Act 2002. Imran’s plans to build a house and allow shrubs to grow beyond two metres would breach these covenants, exposing him to potential legal action. Therefore, Imran is advised to investigate the title documents of both The Wreck and The Kabin to confirm the status of the covenants and consider negotiating a release if they are binding. This situation underscores the complexity of restrictive covenants in land law, highlighting the importance of thorough due diligence before purchasing property with potential restrictions. Ultimately, while there is a risk of enforceability, gaps in the transmission of benefit may offer Imran some leeway, though caution remains paramount.
References
- Dixon, M. (2018) Modern Land Law. 11th ed. Routledge.
- Gray, K. and Gray, S. F. (2011) Elements of Land Law. 5th ed. Oxford University Press.
- Land Registration Act 2002. London: HMSO.
- MacKenzie, J. A. and Phillips, M. (2014) Textbook on Land Law. 15th ed. Oxford University Press.
