A recent High Court case has highlighted the enforceability of older covenants even if, at the point when they are being considered, it is not obvious which land benefits from the covenant.
The case of Bath Rugby Limited v Greenwood and others  EWHC 2662 (Ch) concerned a restrictive covenant from 1922 which would have prevented development of an area of land in the centre of Bath known as “the Rec”. The question was whether or not the benefit of the pre-1926 covenant had been “annexed” to the land of the parties seeking to enforce it. The Court determined that for annexation to occur it was not necessary for the benefitting land to be “easily identifiable” at any time, but merely that at the time the covenant was entered into the land could be identified from other evidence.
On a practical level this means that additional and time-consuming research may be needed to establish enforceability of old covenants, and insurers may be increasingly reluctant to insure against the risk.
For advice on the legal consequences of such covenants and what can be done if your land benefits or is subject to one contact Susanne Hinde on 01223 532723 or click here to email Susanne.