Please sign in with your existing account details.
Register to access exclusive content, sign up to receive our updates and personalise your experience on brownejacobson.com.
Privacy statement - Terms and conditions
Forgotten your password?
You have exceeded the maximum number of login attempts for this email address and your account has been locked. An email has been sent to member of Browne Jacobson's web team and some one will be contacting you over the next two working days with details of how to change your password.
Are you sure you want to remove this item from you pinned content?
Land was conveyed in 1993 subject to a restrictive covenant preventing the land from being used for any purpose other than agriculture. The covenant was stated to be made with the seller and his successors in title and the owners and occupiers for the time being of adjoining land edged red and blue on a plan (the “Retained Land”).
At the same time, a separate agreement was entered into (that was not registered at the Land Registry) by which the buyers (the claimants) promised to promote the land transferred for development and to pay to the original seller an overage payment. In return, the original seller agreed to release the restrictive covenant.
By 2005, only a small part of the Retained Land remained vested in the original seller (the bed of a track). This track bed was sold together with an express assignment of the benefit of the covenant. The track bed was then subsequently sold again in 2013 to the first defendant (without an express assignment of the benefit of the covenant).
The claimants obtained a release of the covenant from the liquidators of the 2005 buyer (to whom the benefit of the covenant had been expressly assigned), believing that this extinguished the covenant. However, the first defendant claimed that it still enjoyed the benefit of the covenant.
Did the covenant just create a purely contractual right (assigned in 2005, but not in 2013), so that it was extinguished by the release that the claimants had obtained?
The covenant created a proprietary right, the benefit of which was annexed to each and every part of the Retained Land (including the track bed now owned by the first defendant). As long as the bed was capable of benefiting from the covenant (a question for another day), the first defendant could enforce the covenant.
Points to note/consider
Here is the latest property quarterly update aimed at in house lawyers (and other professionals) practising in the property/real estate sector.
A case dealing with the validity of a non-reliance clause in a lease and whether the trustees’ liability for misrepresentation was limited to the trust assets.
A case dealing with a property owner’s liability for business rates when substantial refurbishment works are being carried out.
A developer successfully applied to the Upper Tribunal to modify restrictive covenants even though a development was knowingly carried out in breach of the covenants.
The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.
Professional Development Lawyer
Keep up with the latest content from Browne Jacobson:
© Copyright Browne Jacobson LLP 2017 - All rights reserved