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29th September 2015

Ensure the drafting of Restrictive Covenants reflects your intention.

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A recent case on restrictive covenants has highlighted the strength and importance of nuisance covenants, and also the risk of lapse of restrictive covenants with specific consent provisions.

A recent case on restrictive covenants has highlighted the strength and importance of nuisance covenants, and also the risk of lapse of restrictive covenants with specific consent provisions. This case revolves around a small rural cul-de-sac of five high quality stone built houses. When the developer sold the properties in or around 1975, he caused two covenants to be included on the title register of each plot. The first was not to conduct on the property any trade or business of any description nor to use the property for any purpose which may cause nuisance and annoyance to neighbouring properties. The second was , not to erect a building of any kind without the written consent of the Vendor’s Surveyor. The Vendor had recently died, leaving his widow to inherit the property. She and her late husband’s executor purported to appoint a surveyor for the purposes of giving the permission required by the covenant. In 2011, the owner of No. 2 Heather View made an application for planning permission to erect a bungalow in the garden of his plot, as shown on the plan below:- The owners of numbers 1, 3, 4 and 5 not unnaturally objected to this application, on the grounds that it was in breach of the restrictive covenants. They stated that the defendant could not obtain the permission of the Vendor’s Surveyor, as no surveyor had been appointed during the lifetime of the Vendor, and that the no-build covenant had now become an absolute prohibition given that no surveyor could possibly now be appointed. The claimant’s also argued that the process of constructing the dwelling, for example the noise and increased traffic, would constitute a nuisance, and that the dwelling when erected would block and/or spoil their views of the surrounding moorland. Whilst it was agreed that the claimants were entitled to enforce the covenants in so far as they are enforceable, the defendant argued that he had the necessary permission in relation to the no-build clause, as he had requested this from the widow of the original Vendor. In the alternative he argued that the no-build clause lapsed on the death of the Vendor. In relation to the nuisance covenant, the defendant argued that the process of building the bungalow was not relevant under the nuisance clause as this was concerned with activities causing a nuisance or annoyance, not the erection of buildings, and that there was no right to a ‘view’ and therefore any diminution of the view could not constitute a nuisance. The Judge dealt firstly with the nuisance covenant. He established that the drafting of this clause which read not to use the property for “any purpose which may cause nuisance and annoyance” was wide enough to encompass activities of all nature, including building. The Judge concluded that a nuisance could arise following a temporary disturbance such as building works, however there is no authority for stating that such ordinary construction work, carried out with reasonable care, could be a breach of a nuisance covenant. This argument would therefore have been disallowed. The Judge looked at whether or not the loss or diminution of the view could be considered a nuisance under the covenant. The Judge cited case law setting out that the question for consideration is whether reasonable people would be annoyed and/or aggrieved by the loss of such a view from their house. The Judge concluded that a reasonable person would be aggrieved, and further that the positioning of the bungalow was such that at least three out of four of the surrounding houses would have their views of the moor diminished to such an extent as to constitute an annoyance. The Judge held to this view even in the absence of any evidence that the view had been an integral aspect of amenity to the property at the point of purchase, or a specific driver for purchase by the claimants. This was sufficient to conclude that the force of the covenant would bite, and the build should be prohibited. The Judge went on to deal with the issue of the no-build covenant, even though the build was prohibited in light of his view on the nuisance. It was the Judge’s conclusion, in the light of the death of the Vendor, and given his use of the term ‘Vendor’s Surveyor’ throughout the transfer document, that no other individual could be substituted for such an appointed individual. In the absence of anyone able to appoint such surveyor (appointment by the Vendor’s successor in title was not specifically allowed for and therefore could not in the Judge’s opinion have been meant) the ability to consent to any building must lapse. As the consequence of this would be to leave an absolute prohibition on any building, including for example extension to any current dwelling, the Judge ruled that the covenant must be struck out in it’s entirety. This would have the consequence that the building of the bungalow would not be in breach of “no build covenant without consent” as the covenant had lapsed on the death of the Vendor. This conclusion makes clear that in order to maintain the protection of a no-build covenant where consent is allowed for, it must be expressed with perpetuity in mind and care must be taken to ensure it is not personal if this is not intended. For more information, please contact Sally Bishop on 01604 463123 or click here to email Sally.