But, it is important to understand the ‘before and after’ problem. The point is that an estate is usually developed by the sale of individual plots, with the seller taking a covenant from the buyer of each plot (for the benefit of the seller’s unsold land), so that the buyer will then comply with a set of covenants designed to preserve the appearance and amenity of the estate. This will inevitably produce a series of transfers, with each diminishing the amount of land held by the covenantee seller – until by the last sale, there is none left. This can create problems if the claimant’s title is derived from a transfer by the common seller that is earlier than the potential defendant’s title derived from the same seller.

Illustration: A’s predecessor acquired title from the original developer in January 1990. B’s predecessor acquired title from the original developer in March 1990. However, C acquired title from the original developer in November 1989. Both A and C take the view that B is in breach and therefore want to sue him. But, the problem is that A’s covenant with the original developer was made in January 1990, and the benefit would have been annexed to the original developer’s land at that date. But, in March 1990, the original developer did not own A’s land, with the problem being that B covenanted only with the original developer for the benefit of the remainder of the estate (ie, which by that date no longer included A’s land). Accordingly, unless the covenant is expressed to have been made with and for the benefit of those who had already bought, and not just the original developer, B can say that the covenant was not with anyone other than the developer and accordingly was not made with A. Conversely, of course, B can sue A for breaches of covenant (because B has the benefit of the covenant that A gave which was annexed to the estate in January 1990 – part of which was bought by B in March 1990). As far as C is concerned, having bought in November 1989, he can neither sue A nor B – but he may be sued by either A or B!

This example comes from the excellent Restrictive Covenants and Freehold Land: a Practitioners’ Guide, by Andrew Francis (2nd edition), published by Jordans £85. A comprehensive – and surprisingly readable – guide to what can be a horrendously complex topic. © Practical Lawyer