Protecting land rights – how long do short-term covenants last?13.09.2011
Clearly written covenants will ensure clarity and prevent misinterpretation in the often complex area of property and land rights.
Some disputes can end up in court if a covenant hasn’t been plainly drafted and one difficulty with this area of law is that it is not always easy to predict the outcome of a case.
As a result, it’s always important to bear in mind that the court’s decision will depend on the facts specific to that case. In a recent dispute involving a covenant on land the court reached a decision based on facts similar to those in another case in which a different verdict was reached.
In Churchill v Temple, the owners of a house sold part of their garden for development. In order to protect their own position, the conveyance process contained short-term covenants restricting the use of the land that was sold.
- prohibited the erection of any building on the land other than a single dwelling;
- required that the dwelling house had to be built in accordance with plans approved by the vendors or their surveyor (approval not to be unreasonably withheld); and
- required the owners of the land not to make any structural alterations without the approval of the vendors or their surveyor (approval not to be unreasonably withheld).
The land was duly sold and a house built. Later, this was sold to a new owner who decided to demolish the existing house and replace it.
By this time, the original vendors of the land had sold their property and subsequently died and the question arose as to whether the new owners had to seek permission from the successor in title to the original vendors.
The court ruled that the power to withhold consent applied to the original vendors only because they would have been seeking to protect the value of their land by having the restriction. The covenant, which stated that their permission was necessary, therefore did not survive them. Nor did the covenant thereby create a perpetual restriction on development of
With careful drafting, the scope and remit of a covenant(s) can be made clear and therefore prevent unnecessary and lengthy court disputes.