Restrictive Covenants Stymie Care Home Plans

Restrictions on the use of land are to be found in title deeds dating back many years – but their antiquity does not necessarily mean they are any less effective. In one High Court case, restrictive covenants that were more than a century old stymied a developer’s hopes of building a residential care home.

The relevant site had once been part of a larger estate. Following its owner’s death in 1892, the estate was split into a number of building plots and disposed of. The relevant conveyances, dated 1910, contained a number of restrictive covenants that bound both vendors and purchasers and were intended to ensure that only a certain number of high-class residences would be built on each plot.

A developer had acquired a substantial portion of the original estate and had obtained planning consent to demolish existing homes and to build a care facility for elderly people on the site. The proposals were, however, opposed by a number of residents of nearby properties in reliance on the covenants.

The developer launched proceedings, seeking declarations to the effect that the covenants were no longer enforceable. It pointed out that they had been breached numerous times in the past and that the density of housing on the plots had been increased. A block of 18 flats had been built on part of the estate.

In rejecting the developer’s arguments, however, the Court noted that the covenants were expressed to run with the land and to bind future vendors and purchasers of the original plots. They were intended to maintain the residential character of the neighbourhood at a high level of quality. The increase in housing density had not so transformed the character of the estate as to render the covenants unenforceable. The objectors were in principle entitled to enforce the covenants by injunction.