A release of a restrictive covenant had been granted to a predecessor in title of the claimants. The defendants said that the release had been personal to the party to whom it was given, and that the covenant still bound the land.
Held: The claimant’s appeal failed. The document had in different parts defined the transferee and then later referred to the transferee and its successors in title. The situation created by the transfer was not absurd; it had just not been catered for. The covenant remained enforceable.
Jacob LJ said: ‘ It is obviously a strong thing to say that where a draftsman has actually defined a term for the purposes of his document that in some places (but not others) where he uses his chosen term he must have intended some other meaning. It is not impossible however. If, approaching the document through the eyes of the intended sort of reader (here a conveyancer), the court concludes that notwithstanding his chosen definition the draftsman just must have meant something else by the use of the term, it will so construe a document’. And
‘Such a conclusion will only be reached where if the term is given its defined meaning the result would be absurd, given the factual background, known to both parties, in which the document was prepared. Nothing less than absurdity will do – it is not enough that one conclusion makes better commercial sense than another’.
Judges:
Jacob, Wall, Wilson LLJ
Citations:
[2008] EWCA Civ 156
Links:
Jurisdiction:
England and Wales
Citing:
Cited – Marquess of Zetland v Driver CA 1939
The vendor was tenant for life of settled land at Redcar. By a 1926 conveyance part was conveyed to a purchaser who covenanted ‘to the intent and so as to bind as far as practicable the said property hereby conveyed into whosesoever hands the same . .
Cited by:
Cited – Margerison v Bates and Another ChD 30-May-2008
The court considered the construction of a restrictive covenant after the disappearance of the covenantee. The covenant required no additional building without the consent of the covenantee, such consent not to be unreasonably withheld. The term . .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 13 July 2022; Ref: scu.266101