The University wanted to sell land for development free of restrictive covenants. It had previously been in the ownership of both the servient and dominant land in respect of a restrictive covenant. The Borough contended that the restrictive covenants remained in effect. The University sought their discharge.
Held: The Borough had owned the dominant and servient lands for different statutory purposes (for public education and for housing), and therefore the covenants had not been discharged. ‘there is no extinguishment of restrictive covenants when the dominant and servient properties are held by the same trustee on distinct trusts.’ On a true construction of the particular conveyance however, the land could be sold free of the restrictive covenants, but this would in turn bring into effect the authority’s right of pre-emption. If the right was exercised, the price would be as to the land free of the covenants.
Judges:
Lightman J
Citations:
[2004] EWHC 2710 (Ch), Times 03-Jan-2005, [2005] 3 All ER 398, [2005] Ch 354
Links:
Statutes:
Law of Property Act 1925 78 84(2)
Jurisdiction:
England and Wales
Citing:
See Also – University of East London Higher Education Corporation v London Borough of Barking and Dagenham and others ChD 14-Dec-2004
The parties had litigated the sale of land free of restrictive covenants.
Held: The rule that a party was entilted to its costs of defending an action under the Act for the discharge of a covenant at least as far as was necessary for it to . .
Cited – Tulk v Moxhay 22-Dec-1848
Purchaser with notice bound in Equity
A, being seised of the centre garden and some houses in Leicester Square, conveyed the garden to B in fee, and B covenanted for himself and his assigns to keep the garden unbuilt upon.
Held: A purchaser from B, with notice of the covenant, was . .
Cited – Pritchard v Briggs CA 1980
A conveyance of part in 1944 gave a right of pre-emption over retained land. The vendor’s successors the let the retained land to the plaintiff with an option to buy the freehold reversion. The retained land was sold to the defendants in purported . .
Cited – Newton Abbot Co-operative Society Ltd v Williamson and Treadgold Ltd ChD 1952
A restrictive covenant taken for the protection of a business carried on on land owned by the covenantee was a covenant taken for the benefit of land; in other words a property interest. In this context the word ‘assign’ was apposite to an . .
Cited – Renals v Cowlishaw 1879
The word ‘assigns’ was used to denote the successors in title to the land both of the original restrictive covenantor and of the original covenantee.
Held: this was insufficient to enable a subsequent owner of the Mill Hill estate who did not . .
Cited – Renals v Cowlishaw CA 2-Jan-1879
The vendors were trustees for sale of a mansion-house and property, known as the Mill Hill estate, and some adjoining pieces of land and sold two of the adjoining pieces in 1845. The conveyance contained a covenant by the purchaser with the vendors, . .
Cited – Re Ecclesiastical Commissioner’s Conveyance 1936
. .
Cited – Chambers v Randell 1923
Where there is no express annexation of the benefit of a covenant the Court will usually regard the covenant as imposed simply to protect the covenantee while he or she holds the land, or to enable the covenantee to dispose of the land, together . .
Cited – Rogers v Hosegood ChD 1900
The vendors were partners in Cubitt and Co, a well-known firm of builders who had laid out land in Palace Gate, Kensington in building plots suitable for large private houses. In 1869 they twice sold and conveyed plots to the Duke of Bedford subject . .
Cited – Formby v Baker 1903
The term ‘successors and assigns’ was used in case of covenants given by limited companies to ensure that the covenants were not limited to being personal obligations of the company. . .
Cited – Chambers v Kingham 1878
The court was asked whether a lease vested in an administrator in his own right merged in the reversion held by him as administrator.
Held: ‘mergers are odious in equity and never allowed unless for special reason’. There was no merger because . .
Cited – 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 – Mander v Falcke 1891
A restrictive covenant is enforceable against an occupier of the land. It could be a breach to use an access for land beyond that originally envisaged. . .
Cited – Texaco Antilles Ltd v Kernochan HL 1972
The court considered the doctrine of unity of seisin of land as it affected restrictive covenants: ‘if the restrictions in question exist simply for the benefit of two adjoining premises [and not as part of a building scheme] and both those . .
Cited – Post Investments Pty Ltd v Wilson 1-Feb-1990
(New South Wales) The court considered the situation where both the dominant and servient lands affected by a restricive covenant came into common ownership. There must be complete unity not merely of ownership, but also of possession. The law has . .
Cited – Bromley London Borough Council v Greater London Council HL 17-Dec-1981
Councillors’ Duties replace Election Promises
Bromley complained of a supplementary precept issued by the respondent to implement a commitment, contained in an election manifesto for the election in May 1979, upon which the majority on the GLC had been elected.
Held: In making choices of . .
Cited – Regina v Tower Hamlets London Borough Council, ex parte Chetnik Developments Limited HL 1988
The House was asked whether a rating authority could refuse to repay rates which had been paid by mistake.
Held: ‘Parliament must have intended the rating authorities to act in the same high principled way expected by the court of its own . .
Cited by:
See Also – University of East London Higher Education Corporation v London Borough of Barking and Dagenham and others ChD 14-Dec-2004
The parties had litigated the sale of land free of restrictive covenants.
Held: The rule that a party was entilted to its costs of defending an action under the Act for the discharge of a covenant at least as far as was necessary for it to . .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 02 September 2022; Ref: scu.220167