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Restrictive covenant - whose consent? |
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A sold off part of his garden to B, who covenanted not to use the property
other than as a private garden and 'not to erect thereon any building other
than a greenhouse… in accordance with plans which had been approved
previously by the transferor in writing'.
Whose consent was needed - that of
A (as original transferor), or the person to whom it had subsequently sold
their property?
The normal answer, of course, is that it is the original seller's consent that
is needed (ie A). However, in a recent case, the judge decided that those
earlier authorities had all involved situations in which the original seller had
been developing an estate and therefore had a continuing interest in
controlling building work even after selling the immediately neighbouring
property. In this case, however, the original transaction had been a sale
between two neighbours and it would therefore have been surprising if it was
the original seller (A) who needed to exercise control after selling his house
- the person with real interest in control would be the new owner. On the
facts of the case, it was held that 'the transferor' meant the current owner
of the dominant land, rather than its original owner.
It may be that this is a one-off decision. However, it could prove an extremely
useful authority for those neighbours trying to enforce old restrictive
covenants in a non-'estate' situation. Sims v Mahon [2005] All ER (D) 169.
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September 2005 |
