Recently, we asked the same question. That case involved the Port of London Authority, which sold some land in 1962, with the transfer containing restrictive covenants that prevented alterations without the prior approval of the ‘transferor’. Subsequently, the PLA sold its adjoining land and the question then arose as to whether the covenant could be enforced by the current owner of that land (ie the successor in title to the PLA). The CA decided that ‘the transferor’ meant the PLA (only). Thus, the subsequent owner (as successor in title) could not enforce the covenant.

We now have another example which comes to a similar conclusion. This case involved a covenant imposed by the vendor of a large house and garden, when he sold off part of the garden as the site of a new bungalow. The covenant said that any alterations to that bungalow would first have to be approved ‘by the vendor’. That covenant was imposed in 1966, with the original vendor having died in 1977. His successors in title recently tried to enforce that covenant against subsequent owners of the bungalow. The key question, of course, was whether the phrase ‘the vendor’ meant the original vendor (only), or whether it also included his successors in title. The High Court decided that it referred to the original vendor (only), and thus was personal to him. Accordingly, it could not be enforced by his successors in title. Moreover, it was confirmed that the death of the original vendor meant that the covenant against alterations was discharged (ie it no longer existed).

Needless to say, all cases of this sort depend upon the precise wording used in the particular documentation, but it seems quite clear the courts will veer towards a literal interpretation – which means that if phrases such as ‘the transferor’ or ‘the vendor’ are used then that will normally not extend to successors in title. The lesson here is that conveyancers should consider whether the intention is that successors in title should be included or not, and then make the position clear – one way or the other – in the documentation. See Margerison v Bates [2008] EWHC 1211 (Ch).© Practical Lawyer