A vendor/purchaser covenant was not to use the premises, ‘for any purpose other than those of or in connection with a private dwellinghouse.’ The parties requested the court to construe its meaning. The meaning had been considered before and settled although it was said that the words remained ambiguous.
Held: There was a substantial advantage to parties to legal documents knowing in advance the meaning of their documents. Certainty avoided risk, doubt and legal costs. Accordingly even though the court should recognise the real dangers of transporting interpretations from one document to another, where a phrase had had assigned a clear meaning by the Court of Appeal, the court should depart from that interpretation only with good reason.
Neuberger J said that the covenant prevented the erection of more than one dwelling house on a plot. He emphasised the importance of the wording of the particular covenant and its circumstances, and further that that the use of the indefinite article ‘a’ connotes or may connote some form of singularity. Further, it was desirable that, for the guidance of practitioners, words used in covenants should have a consistent meaning. In Dobbs -v- Linford an assumption had been made, subject of course to the context, that the expression ‘a private dwellinghouse’ indicated the limitation of the property to one dwelling house and no more. Neuberger J continued: ‘If, as in the case before me, a plot cannot be used other than for the purposes of a dwelling house, then, as I see it, the covenant is directed to the plot as a whole. If there are two dwelling houses on the plot, then the plot, viewed as a single entity, is not being used for or in connection with ‘a dwellinghouse’, but for or in connection with ‘two dwellinghouses’. However, where, as in Briggs’ case, [that being a reference to Briggs and another v McCusker [1996] 2 EGLR 197] the covenant also extends to ‘any part’ of the plot or, even more, ‘any buildings . . thereon’, it is rather easier to contend that the draftsman had in mind the notion that any building erected on the plot was either to be a dwelling house or to be used in connection with a dwelling house. I am not saying that that is the correct approach to the covenant in Briggs’ case, but it does appear to me to give a real basis for distinguishing that decision.’
Neuberger J
Times 10-Dec-2002, [2003] 1 All ER 46, [2002] EWHC 2776 (Ch)
Law of Property Act 1925 78
England and Wales
Citing:
Cited – Federated Homes Ltd v Mill Lodge Properties Ltd CA 29-Nov-1979
Covenents Attach to entire land not just parts
Conveyances contained restrictive covenants but they were not expressly attached to the land. The issue was whether they were merely personal.
Held: Section 78 made the covenant by the purchaser binding on his successors also. The section . .
Cited – Shropshire County Council v Edwards 1982
If in the instrument creating a restrictive covenant before 1926, both the land which is intended to be benefited and an intention to benefit that land, as distinct from benefiting the covenantee personally, can clearly be established, then the . .
Cited by:
Appeal from – Crest Nicholson Residential (South) Ltd v McAllister CA 1-Apr-2004
Land had been purchased which was subject to a restrictive covenant. The papers did not disclose the precise extent of the dominant land, the land which benefitted from the restriction.
Held: The land having the benefit of a covenant had to be . .
Cited – Mohammadzadeh v Joseph and others ChD 15-Feb-2006
The parties disputed whether the defendants owned the benefit of a restrictive covenant.
Held: The covenant did touch and concern the land, and the land with the benefit of covenant. The conditions under Federated Homes were met. The covenants . .
Lists of cited by and citing cases may be incomplete.
Contract
Updated: 22 December 2021; Ref: scu.178365