For a restrictive covenant to be enforceable by a successor in title, there are two requirements: (i) the land benefiting must be identified, and (ii) the benefit must have passed to the person trying to enforce it (by annexation, assignment, or by there being a building scheme).

In practice, many restrictive covenants are now unenforceable. For instance, a recent case involved an 1896 covenant with ‘the vendors, their successors and assignees’ not to use land in a particular way ‘without the consent in writing of the vendors’. So, whilst the covenant was with successors in title, the clause said that consent had to be obtained from the vendors (with no mention of successors in title). The complication here was that the original vendor (with the benefit of the covenant) was a building society that had been dissolved in 1929. Accordingly, was the covenant still enforceable by the building society’s successors in title? The answer was ‘no’. Firstly, the 1896 document did not identify the land to which the covenant was annexed (ie the land that was benefited). Thus, it was unenforceable. Secondly, the wording meant that the covenant was personal to the building society and could only be enforced by it (which meant the covenant became unenforceable when the building society was dissolved).

Cases of this sort always depend on their own facts. But, it is a useful reminder of the importance of checking that the land to be benefited is sufficiently identified (if only by implication), and also checking whether the covenant is personal to the original seller.

Another example is ?Margerison [2008] where a covenant said that any alterations to the building had to be approved by ‘the seller’. However, the seller had died and the question then arose as to whether his successors in title had the benefit of the covenant and so could enforce it. The document in question referred to ‘successors in title’ in some places, and in others did not. The court therefore placed considerable importance on the fact that successors in title were not referred to in this particular clause and concluded that it was a covenant personal to the original seller (and so not enforceable by successors in title). In practice, the omission of the words ‘successors in title’ will not necessarily be fatal to an enforceability claim, but will make it an uphill struggle for a successor to be able to claim the benefit (note that for post-1925 covenants, s78 LPA 1925 says that a covenant is deemed to be made with successors in title unless otherwise excluded – but that is not always conclusive, and much will depend upon the wording of the rest of the documentation, which may imply that successors are not included). ?Seymour Road v Williams & Ors [2010] EWHC 111 (Ch) (access free at www.practicalconveyancing.co.uk).