The Court determined that restrictive covenants created by two conveyances dating back to 1910 continued to affect the Claimant’s property and were in principle enforceable by injunction by any or all of the Defendants against the Claimant.
The Claimant issued a claim under CPR Part 8 pursuant to section 84(2) of the Law of Property Act 1925 and/or the inherent jurisdiction of the court for declarations relating to the enforceability of restrictive covenants against it.
The Claimant had obtained planning permission to develop its property into a residential care home following the demolition of 3 existing dwellings. The Claimant contended that the restrictive covenants no longer affected the property and were not enforceable against it as owner, but accepted that the permitted development would be in breach of the covenants if they did apply.
The Claimant argued that the defendants were unable to enforce the purchaser covenants against the Claimant because (1) there had been breaches of the vendor covenants and therefore the Defendants were deprived of the right to enforce the purchaser covenants; and (2) those entitled to rely on the benefit of the purchaser covenants have made or permitted such changes in the character of the neighbourhood that those covenants had ceased to have practical effect.
The Claimant was unable to discharge the burden of proving that the Defendants had breached the covenants as alleged. Even in those instances where breach could be established, too many years had passed since such breach (whether by the Defendants and/or their predecessors in title) and no injunction proceedings had been initiated at the time. The court was not persuaded by the Claimant’s argument that the restrictive covenants were interdependent. The Claimant’s second argument also failed.