The plaintiff sought to enforce a restrictive covenant against using a property ‘otherwise than as a private dwelling-house’. 30 years later the Defendant purchased the property and immediately started taking paying guests. The defendant had suggested that the covenants may be modified by the Lands Tribunal, but he made no application.
Held: The area was ‘mainly’ residential, although many flats had been erected and a few boarding houses and schools had come into existence in ‘technical breach of the covenants’. The covenants remained enforceable although a court may rule that a restrictive covenant has ceased to be enforceable through obsolescence.
Farwell J discussed the defence put forward that the character of the area had changed: ‘But to succeed on that ground the defendant must show that there has been so complete a change in the character of the neighbourhood that there is no longer any value left in the covenants at all. A man who has covenants for the protection of his property cannot be deprived of his rights thereunder merely by the acts or omissions of other persons unless those acts or omissions bring about such a state of affairs as to render the covenants valueless, so that an action to enforce them would be unmeritorious, not bona fide at all, and merely brought for some ulterior purpose.
Whether right or wrong the plaintiffs are bringing this action bona fide to protect their property, and it is hopeless to say that the change in the character of the neighbourhood is so complete that it would be useless for me to give them any relief. ‘
Judges:
Farwell J
Citations:
[1931] 1 Ch 224
Statutes:
Cited by:
Cited – Turner and Another v Pryce and others ChD 9-Jan-2008
The claimants asserted that they had the benefit of restrictive covenants under a building scheme to prevent the defendants erecting more houses in their neighbouring garden. The defendants pointed to alleged breaches of the same scheme by the . .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 01 May 2022; Ref: scu.263765