Key points

  • A covenant not to do something "without the vendor's consent" may require the consent of the original vendor, or alternatively that of his successor(s) in title
  • Whose consent is required will depend on the facts in every case
  • Where the consent required is that of the original vendor, and that person has died, or is a corporate entity which no longer exists, the court must decide whether the covenant now constitutes an absolute prohibition, or whether it has been discharged.

Whose consent is required under a restrictive covenant, and the effect of consent no longer being available, will always depend on the circumstances of each individual case. To that extent, previous cases should be treated with caution. However, the approach the court takes to determine this difficult question is always worthy of examination.

Facts

In Re Hutchins Cottage, on the application of Woodhouse, a conveyance imposed a number of separate covenants. The original vendor who imposed the covenants had died, and the applicants sought the discharge of the restrictions.

One of the covenants provided that:

"No building shall at any time without the previous consent of the Vendor be used for any trade manufacture or business or otherwise than as a private dwellinghouse and no hoarding or advertisement shall ever be erected or displayed (except notices for letting or sale)".

The court contrasted the drafting in this covenant with that in another covenant imposed under the same conveyance. This covenant prevented building without plans being approved by the vendor "or the owners for the time being of the vendor's adjoining property".

The tribunal ruled that, following the death of the original vendor, the restriction as to use had become absolute. The tribunal thought that it would be surprising if the use restriction was discharged with the death of the vendor, while the prohibition on advertising remained.

Things to consider

The court distinguished the covenant in this case, which was a restriction on use, from a covenant which requires the vendor's approval to building plans. In the case of the latter type of covenant, where no provision is made in the event of the vendor's death (or, if a company, its dissolution), the court thought that there was a strong argument that in such an event the restriction would become spent, following Crest Nicholson Residential (South) Ltd v McAllister (2008).

However, much will turn on the wording of the individual covenant. In Margerison v Bates the court concluded that a covenant not to make alterations without the vendor's consent was discharged following the vendor's death. However, the property was also burdened by a separate covenant not to build anything on the property other than one bungalow, the plans for which had to be approved by the original vendor. With the bungalow having been built, the court thought that the main prohibition on building remained.

Finally, it is important to remember that the power to enforce a covenant, and the power to dispense consent under it, can become vested in two different people, as in City Inn (Jersey) Ltd v Ten Trinity Square Ltd (2007). In Re Hutchins Cottage, the restrictions were imposed "for the benefit of the adjoining and neighbouring lands of the Vendor". At the time of the conveyance, the vendor owned a house called Hutchins, and a large amount of agricultural land. The agricultural land was developed into housing and one of the house owners, Mrs P, claimed to be entitled to the benefit of the restriction on building.

The tribunal ruled that Mrs P was not entitled to enforce this restriction, as approval of plans could only be given by successors in title to the Hutchins house, and not the agricultural land. However, the better analysis is that Mrs P could enforce the prohibition on building if the consent of the successors in title to the Hutchins house had not been obtained, even if she was not herself entitled to grant that consent.