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Restrictive covenant - damages |
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A landowner started construction work, even though the land was subject to
a restrictive covenant preventing the erection of any building. Foundations
were laid in 1977 but no further work was carried out until 1999 (with the
works being finished by 2002). The neighbouring landowner, who had the
benefit of the restrictive covenant, sued for damages. It was then argued
that he had not objected soon enough and had therefore ‘acquiesced’ in the
construction of the building, and so was not entitled to damages.
The court decided that the defendant had known of the works by early 2000,
but the delay was not such as to make it unconscionable for him to seek
damages. For conduct to be unconscionable it would have to have an effect on
the other person that causes him to act to his detriment. Thus, in a case such
as this you have to look and see the extent to which the person who has broken
the restrictive covenant has acted to his own detriment. Here, that person had
profited from the enhanced land value and the obligation to pay damages did
not make it unconscionable for the defendant to delay raising the claim. Thus,
whilst it would have been too late to seek an injunction, it was not too late to
pursue a damages claim. Harris v Willams-Wynne [2006] EWCA Civ 104.
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July 2006 |
