Key points

  • The land which benefits from a restrictive covenant must be easily ascertainable from the document which imposes the covenant
  • It may be possible to refer to some extrinsic evidence to establish the exact scope of the land
  • The fact that some of the benefiting land is identifiable and some is not does not make the covenant unenforceable
  • The traffic impact of the operation of a junior school may constitute a breach of a covenant not to cause a nuisance or annoyance to surrounding owners

Background

In order for a covenant to be enforceable, there must be both land which is burdened and land which is benefited. If the meaning of a restrictive covenant, or the extent of the land benefiting from it, is unclear, it is possible to make an application to court for it to be determined under section 84(2) of the Law of Property Act 1925.

The rules about how the benefit of a covenant can be transmitted from one owner to another are not straightforward. However, the most usual way is to show that the benefit of the covenant has been "annexed" to the benefiting land.

In order to show that annexation has occurred, the land which is intended to be benefited must be defined in a way that it is easily ascertainable. This is so that it is easier for a person buying the burdened land to work out who currently has the benefit of a restrictive covenant and so is able to enforce it.

Facts of Trustees of the Coventry School Foundation v Whitehouse

In Trustees of the Coventry School Foundation v Whitehouse, a covenant was imposed in a 1931 conveyance. The vendors under the conveyance retained some land nearby.

The operative words in the covenant did not identify the land which was intended to be benefited from the covenant. They merely stated that the covenant was made "with the Vendors and their successors in title".

However, the substance of the restriction itself did refer to the Vendors' "adjoining or adjacent property". The plan attached to the conveyance identified the location of some, but not all, of this land. The part of the retained land which was shown on the plan had subsequently been developed as a housing estate. The defendants were the owners of individual houses on the estate.

Had the benefiting land been sufficiently identified to make the covenant enforceable?

The owners of the burdened land wished to develop it as a junior school. They argued that the boundaries of the retained land could not be clearly identified on the plan attached to the 1931 conveyance, and that this made the covenant unenforceable by anyone.

The defendants contended that it was permissible to look outside the conveyance itself for evidence from which to identify the benefiting land. Records were readily available from the local archives office which showed the extent of the retained land which was identified on the plan.

The court agreed with the defendants, and consequently ruled that the majority of them did have the benefit of the covenant.

A small number of the defendants owned properties which were outside the boundary of the land identified from the historic records. They submitted evidence which, they argued, showed that they had also purchased land which at the time of the 1931 conveyance had been owned by the vendors under that conveyance.

However, in their case, the court ruled that the fact that their land was intended to benefit from the covenant was not so easily ascertainable. It therefore declined to hold that they could enforce the covenant.

Importantly, the fact that some of the retained land was identifiable and some was not did not dissuade the court from holding that the covenant was enforceable by those defendants who could trace their land by reference to the conveyance. The land which was easily ascertainable was not "tainted" by the uncertainty as to whether there was also other adjoining or adjacent land which had the benefit of the covenant.

Would development of the land as a junior school breach the covenant?

The covenant provided that the land should not be used for any noisy pursuit or occupation. It went on to say that the land must also not be used for any purpose which may be (or may grow to be) a nuisance or annoyance to the vendors and their successors in title.

The defendants argued that the noise created both at playtimes, and by the school run, would constitute a breach of the first part of the covenant. The court disagreed, finding that schools are a feature of everyday urban life, and ruled that on the evidence the operation of a school would not be "a noisy pursuit or occupation".

As far as the covenant not to cause a nuisance or annoyance was concerned, the court distinguished nuisance from annoyance. A "nuisance" would have a material effect on the senses. "Annoyance" had a wider meaning and may affect the intellect rather than the senses ("something which reasonably troubles the mind and pleasure of an ordinary sensible inhabitant").

The sorts of things which may constitute a nuisance or annoyance may change over time. In either case, the impact is to be judged by reference to "the sensible person, whose qualities include a reasonable measure of robustness and common sense".

The court rejected the suggestion that the architectural design of the school was capable of constituting a nuisance or annoyance. However, it thought that the impact of noise, obstruction and congestion from traffic on the school run may be, or grow to be, a nuisance or annoyance. It therefore refused to make the declaration sought by the developer that the development would not breach the covenant.

Things to consider

The court ruled that where the document imposing the covenant leaves the benefiting land undefined, it is only permissible to take account of other evidence where this is readily available or accessible.

In this case, a direct enquiry of the seller under the 1931 conveyance (a charity, which was still in existence) revealed that the relevant records had been passed to the local archives department, from where it was relatively easy to track them down.

The finding of the court that the covenant was enforceable by those who could easily prove that they had the benefit (notwithstanding that there may also have been others who could not prove it so easily) is important. It assists those trying to enforce covenants where the underlying documentation may leave open the question whether there is any other land which may benefit.

This means that developers cannot dismiss a covenant simply because the benefiting land is not immediately identifiable from the document imposing it. If at least some of the benefiting land can be easily ascertained by reference to extrinsic evidence, the covenant is likely to be enforceable by those landowners at least.