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Background:
In Martin v David Wilson Homes Ltd [2004], the Court of Appeal has held that a covenant that restricted use of any building on a property to "a private dwelling house" was a restriction on use, not a restriction on number.
Therefore, no breach of covenant would occur if a developer built twelve houses on the land. This decision conflicts with the earlier decision in Crest Nicholson Residential (South) Ltd v McAllister [2002] EWHC 2443 (Ch) (which was reported in the December 2002 edition of Real Estate Update). That case held that, in a similarly worded covenant, the restriction related to the number of houses, not use.
Facts:
A property was subject to a restrictive covenant that prohibited the use of any building for any purpose other than as "a private dwelling house". One single house had been built at the property. A buyer of the land intended to build twelve houses on it and was sued for breach of covenant. The claimant sought to rely on the restrictive covenant as prohibiting the construction of additional houses at the property.
The court had to decide whether the indefinite article in "a private dwelling house" was to be construed as a restriction on the number of buildings constructed at the property or its manner of use. At first instance, the judge held that the phrase restricted the number of buildings that could be built at the property to a single house. The buyer appealed.
Decision:
The Court of Appeal ruled in favour of the buyer. It said that in approaching the construction of the clause it had to consider: (a) the literal wording; (b) the factual matrix in which those words were formulated; and (c) any authorities that might guide the court.
In this case, the use of "a dwelling house" referred to several dwelling houses. Some of the relevant words used in the clause as a whole were plural and they should have their natural meaning ascribed to them. The indefinite article in the phrase "a private dwelling house" did not carry any necessary implication of singularity and referred to use. The Crest case was erroneous in finding that the use of the indefinite article in a phrase similar to that in question in the current case conveyed singularity.
Comment:
At the time of writing, the full wording of the covenant is not available to see how the court used some of the other words in the clause as an aid to interpretation. The courts are reluctant to follow the authorities in cases of interpretation of documents and each case depends on the particular words used. As the court acknowledged in Crest, there are previous authorities to support the interpretation of the covenant given in both Crest and Martin.
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