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Restrictive covenant - delay? |
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If you want to stop an alleged breach of restrictive covenant then you need to act speedily; if you delay, then you will normally only be awarded damages even if there has been a breach of covenant. In particular, the courts are very reluctant to order the demolition of a completed building. Accordingly, you usually need to apply for an interim injunction rather than waiting for the case to go to court for a full hearing.
But, just how much delay is acceptable? Obviously, the answer depends upon
the facts of the individual case. But, a recent dispute between the owners of
two major properties in the City is a useful guide. A 1920s covenant contained
height restrictions, but the owner of one of the buildings was now proposing
changes that would exceed those agreed heights. When an interim injunction was
sought, it was argued by the developer that two months' delay between the building
owners knowing of the planned works and the start of court proceedings was too
long. However, the court disagreed; the two months had been spent in reasonable
requests for further information which the developers had been slow in providing.
Accordingly, an injunction was granted. As such, it illustrates the risk that
a developer runs in situations such as this; the developer was aware of the
risks (ie he knew of the covenant) and thus he was taking a calculated gamble
– and one that did not pay off. City
of London v Intercede 1765
[2005] EWHC 1691 (Ch).
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October 2005 |
