Restrictions on the use to which properties can be put often lurk in old title deeds. As one case recently reviewed by litigation expert David Watson showed, however, some of them only endure as long as a human lifetime whilst others have no such shelf life and continue to have effect indefinitely.
The case concerned a covenant in a 1961 conveyance that placed restrictions on the purchasers of a building plot on which a bungalow was later erected. It forbade them from constructing any other building on the plot, and from making alterations to the bungalow’s external appearance, without first submitting detailed plans and specifications to a surveyor appointed by the three original vendors.
No such works were permitted to commence without the surveyor’s prior approval and it was some measure of the antiquity of the covenant that the purchasers were required to pay a fee of two guineas for the surveyor’s services.
The bungalow’s current owners applied to the Upper Tribunal (UT) for the restrictions to be discharged. Their application was, however, resisted by a property company that managed a large neighbouring house which had been converted into flats. Both the house and the land on which the bungalow was built were in common ownership prior to 1961.
The owners argued that the restrictions became obsolete on the death of the last of the original vendors. They presented probate records and photos of graveyard memorials to establish that that event occurred in 1991. They contended that the restrictions had automatically lapsed in that there was no one left alive who could appoint a surveyor to exercise the power of prior approval.
The company, however, maintained that the restrictions were as relevant today as they were in 1961. Although the covenant did not explicitly provide that the benefit of the restrictions would pass to the vendors’ successors in title, it also did not state that they would cease to have effect when the last of them died.
Ruling in the owners’ favour, the UT found that all the evidence – including the fact that the surveyor’s fixed fee had no regard for the effects of inflation – pointed to the restrictions being time limited to the lifetimes of the vendors. Having ruled the restrictions obsolete, the UT exercised its power under Section 84(1)(a) of the Law of Property Act 1925 to discharge them.
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