The parties contracted for the sale and purchase of a shop which had been used continuously and openly with an off-licence for the sale of alcohol for twenty four years. After exchange, a restrictive covenant was revealed against the use of land as an inn, tavern or beerhouse. The covenant had been imposed in 1874, and the open use in breach had begun shortly afterwards. The buyer sought to rescind the contract.
Held: His action failed. The covenant had been waived or released. Farwell J said: ‘if you find a long course of usage, such as in the present case for twenty-four years, which is wholly inconsistent with the continuance of the covenant relied upon, the Court infers some legal proceeding which has put an end to that covenant, in order to show that the usage has been and is now lawful, and not wrongful.’
Farwell J
[1900] 1 Ch 108, [1900] 69 LJ Ch 55, [1900] 81 LT 818, [1900] 48 WR 184, [1900] 44 Sol Jo 44
England and Wales
Citing:
Cited – Flight v Barton 1832
The silence of the vendor’s agent is equivalent to a representation that there is no covenant prohibiting the current use of a property being sold. . .
Followed – Gibson v Doeg 1857
A tenant had openly used the premises for many years in breach of a covenant in the lease.
Held: Pollock CB said: ‘It is a maxim of the law to give effect to everything to which appears to have been established for a considerable course of . .
Followed – In re Summerson (Note) 23-Feb-1899
The buyer of leasehold promises sought to be discharged from her obligation to complete, when it was revealed after exchange of contracts, that the lease contained a clause for forfeiture if the premises should be used as an alehouse. The property . .
Cited by:
Cited – Attorney General of Hong Kong v Fairfax Limited PC 17-Dec-1996
(Hong Kong) A lease had been granted containing a covenant that the tenant would build villa residences only on the land. In breach of that covenant many high rise properties had been erected over many years. The applicant, now respondents, had . .
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 . .
Cited – Greenhalgh v Brindley 1901
. .
Cited – Tew v South Northamptonshire Council UTLC 20-Sep-2010
UTLC COMPULSORY PURCHASE – disused public house in poor condition – value as public house/restaurant – comparables – value for residential development – residual valuation – whether developer demand still buoyant . .
Mentioned – Jacey Property Company Ltd v De Sousa and others CA 28-Feb-2003
. .
Cited – City and Westminster Properties v Mudd ChD 1958
. .
Cited – Re Lower Onibury Farm, Onibury, Shropshire, Lloyds Bank Ltd v Jones 1955
Long acquiescence by a landlord, or a failure to insist on his rights, does not amount to a release from a covenant, unless his conduct is wholly inconsistent with the continued existence of the covenant or shows that he intended to waive . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 August 2021; Ref: scu.252340