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Articles 8th Dec 2015

Restrictive Covenants: Consent to build

Cook & Ano’r (Re: 21 Shawfield Park) [2014] – UKUT

Cook owned a two-storey dwelling-house known as 21 Shawfield Park and wanted to construct a larger house on the land. A 1962 Conveyance imposed covenants burdening 21 Shawfield Park for the benefit of 23 Shawfield Park which included a covenant:

“Not to erect any building on the land…except in accordance with plans and drawings to be previously approved in writing by the Vendor.”

The “Vendor” in the 1962 Conveyance had ceased to be the owner of 23 Shawfield Park a long time ago and had subsequently passed away.

Cook’s arguments included that the covenant was obsolete (under section 84(1)(a); Law of Property Act 1925) as it was no longer possible for it to serve its original
purpose.  In a nutshell, by virtue of the death of “the Vendor” the covenant had become obsolete since the covenant, when properly construed, required the consent of a person who was no longer alive.

The Tribunal found in favour of Cook – the death of the Vendor meant the covenant lapsed and became unenforceable.

Key points:

  • There have been similar disputes litigated in the past and one case may not provide clear authority for another – here the fact there was no requirement for reasonableness suggested covenant was short term;
  • Use of clear and consistent language is imperative;
  • Is the intention that consent is required from the original transferor only or does it include their successors in title? This will depend on the interpretation provisions in the transfer deed.

The content of this page is a summary of the law in force at the present time and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.

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