Restrictive Covenants

• Pages: 459-522

RESTRICTIVE COVENANTS

Restrictive covenants are contractual terms which restrict the use of land.

These terms are usually found in conveyances between an owner of land

and one purchasing a part of it, enjoining the latter to use or abstain from

using the land purchased in a particular way.1Such restrictions on the use

of land may also be embodied in a deed entered into by landowners of

a defined area imposing on themselves the mode of use of their respective

lands.

In Larkins v. Bradshaw,2the defendant and the plaintiff were adjoining

property owners. Their respective properties were subject to a scheme

which enjoined them not to carry on building operations on their indi-

vidual plots beyond a specified length from their common boundary.

The defendant built 25 feet from the boundary in contravention of the

covenant. Arrindell J. granted an injunction to restrain the defendant

from carrying out building operations less than 25ft from the plaintiff’s

boundary without the approval of the plaintiff. The restriction on the

defendant’s right as to where he might build on his lot was considered as a

restrictive covenant.

PRIVITY OF CONTRACT

Where there is a contractual relationship between the parties all covenants

can be enforced by or against each other. The parties are then liable on or

entitled to enforce the covenants because of the contractual relationship

existing between them.

ABSENCE OF PRIVITY OF CONTRACT

Where one party or all the parties were not privy to the contract containing

the covenants sought to be enforced, liability on or right to enforce the

covenants is not so simple. The questions to be asked in a situation where

there is no privity of contract is

1Tulk v. Moxhay (1848) 41 E.R. 1143.

21982 6 W.I. L. J. 135.

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(a) whether the plaintiff is competent to sue, and

(b) whether the defendant is liable on the covenant to which he was not

a party.

Benefit of a covenant at common law

Successor in Title of the Covenantee Suing the Original Covenantor

Where a covenantee, i.e, the person to whom the promise to use the prop-

erty in the restricted mode was given, transfers his title to the property for

the benefit of which the promise was made to a third party, a question arises

as to whether the third party, the person who succeeds to the title of the

covenantee, can sue the original convenantor if he breaches the covenant.

The successor in title would not be a party to the conveyance. He would

therefore lack the competence to sue in contract. It was held in Berkeley v.

Hardy3that if a deed was entered into between “A for and on behalf of B

of the one part and C of the other part”, and all the covenants were taken

nominally with B, but the deed was executed by Ain his (A’s) name,

B could not sue on the covenants since he was not a party to the deed

which was entered into for his benefit.

A. Transmission of Benefit of Covenant under Common Law

The common law allowed a successor in title to enforce a covenant against

the original covenantor under certain circumstances. Since the successor in

title of the covenantee might not be a party to the conveyance containing

the covenant, he would succeed at common law only if the covenant he

was seeking to enforce was of proprietary nature; the claim could not

be based on contract and property law has its own principles for the

transmission of benefits of covenants. The following conditions which are

cumulative have to be established:

(1) The covenant must touch and concern the land of the covenantee

The covenant which the successor in title of the covenantee seeks to

enforce against the original covenantor should be of a proprietary nature,

i.e., it should have the quality of a covenant which inheres in the relation-

ship of parties who have interests in land. The covenant must touch and

concern land of the covenantee.4The matter turns on the question whether

the covenant does

3(1826) 5 B. & C. 355.

4Smith and Snipes Hall Farm Ltd. v. River Douglas Catchment Board [1949] 2 K.B. 500.

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affect the land itself during the term such as those which regard the mode

of occupation, it must be such as per se, and not merely from collateral

circumstances affect the value of the land at the end of the term.5

It should be a covenant which has reference to the subject-matter of the

estate. It should not merely affect the person; it should affect the nature,

quality, or value of, or the mode of using or enjoying the property.

(2) Intention to benefit the land owned by the covenantee

The covenant should not be a personal covenant. That is, the covenant

should not have been couched to benefit the covenantee personally.

The circumstances should evince an intention to benefit the land of the

covenantee.

The defendant in Smith and Snipes Hall Farm Ltd. v. River Douglas

Catchment Board6covenanted with the owners of land within that area

that in consideration of the Board’s widening, deepening and making good

the banks of the Elder Brook, taking control thereof and maintaining the

work when it was completed, the owners would contribute to the cost of

the same. Smith, one of the owners, sold her land, expressly with the

benefit of the covenant, to the first plaintiff, John Bruce Smith, who leased

it to the second plaintiff under a yearly tenancy. Owing to the faulty

work of the defendants the brook broke its banks, and flooded the land

of the plaintiffs, who succeeded in an action against the Board for breach of

contract.

Tucker L.J. found that

the deed shows that its object was to improve the drainage of land liable to

flooding and prevent future flooding. ...it affects the value of the land per

se and converts it from flooded meadows to land suitable for agriculture,

and shows an intention that the benefit of the obligation to maintain shall

attach thereto into whosoever hands the land shall come.

(3) Existence of legal estate

For such a covenant to which the successor in title was not a party to be

enforceable against the original covenantor, it should be proved that at the

time the covenant was given by the original covenantor a legal and not

an equitable estate was created. Where there was no such legal estate at the

time the deed was executed, the successor in title of the covenantee cannot

enforce the covenant against the original covenantor at law.7

5Congleton Corporation v. Pattison (1808) 10 East. 130, 138.

6[1949] 2 K.B. 500.

7Webb v. Russell (1789) 3 Term Rep. 393.

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