Development Stymied by Century-Old Covenant

Title deeds obviously need careful perusal before investing in property; however, one property developer came expensively unstuck due to a 100-year-old indenture which was invoked by objectors and stymied its house building plans.

The developer had won planning permission to build two new detached homes in the grounds of an Edwardian house. However, the owners of an adjacent property pointed to a restrictive covenant which dictated that only one house could be built on the land. The indenture containing the covenant dated back to 1910.

The developer sought a High Court declaration that the terms of the covenant had lapsed and were of no effect. That was on the basis that the building restriction had been designed solely to protect the original vendor of the land and that it was thus unenforceable by the objectors.

In rejecting the developer’s case, however, the Court found that the two homes had been built as part of a coherent scheme of development which had been laid out in 1906. Many of the homes on the estate benefitted from similar covenants. In those circumstances, the Court was satisfied that the covenant benefited the original purchasers of the land and their successors. The continuing enforceability of the covenant meant that the development could not go ahead.