Land Estate Covenants
The Duchess seeks your advice on the following specific matters:
Facts:
In October 1994, Hamish was the registered proprietor of Pluckley Mansions, a large country house in rural Kent, comprising a mansion house set in six acres of land. In December 1998, he severed a one-acre plot of land from his estate and sold the freehold title thereof to Sarah.
By the transfer, Sarah covenanted with Hamish in the following terms: "The transferee/or herself, her executors, administrators and assigns hereby covenants with the transferor and his assigns, the owners and occupiers for the time being of the property known as Pluckley Mansions, in the County of Kent, or any part or parts thereof ("the transferor's retained land") to the intent and so that the said covenants shall be binding on the land hereby transferred into whomever hands the same may come and may endure for the benefit of and be annexed to the transferor's retained land, that the said land hereby transferred will be used for the purposes of building one residential dwelling only and that a hedge of not less than three meters in height shall be planted and maintained between the said land hereby transferred and the transferor's retained land.
After taking up possession, Sarah built a house on the one-acre plot and also planted a hedge two meters in height between her land and the land retained by Hamish. In June 2000, Hamish transferred his freehold title to Pluckley Mansions to the Duchess of Greenwich. In August 2000, Sarah sold the freehold title to her land to Woodward Construction Ltd.
In 2002 Woodward Construction Ltd obtained planning permission to develop the one-acre plot for the purposes of constructing five luxury bungalows. Construction work commenced last year and two of the five bungalows have now been completed. The Duchess of Greenwich made various complaints to the directors of Woodward Construction Ltd during the course of the construction work, but these were ignored. It recently transpired (following an inspection of the boundary) that the hedge has been dug up and that one of the bungalows has been built partly on the Duchess's land. (The encroachment extends to approx. 20 square meters). The Duchess wishes to oppose the development and have the boundary hedge Restored. She also wants the offending bungalow that encroaches upon her land demolished.
Advice:
(1) Whether she is entitled to the benefit of the covenants contained in the1998 transfer;
In respect to the estate the covenants will benefit the Duchess in the same way that the restrictive covenants benefited Hamish, as long as there is an entry on the land charges register. Also it can be shown by that the covenant was expressly meant to run with the land, which the agreement that Sarah signed. Therefore indicating that they were meant to run with the land and at the time of sale this was overtly expressed to Sarah. However only one of the covenants is restrictive therefore are binding, i.e. the restriction on building further on the land. The second one requires that action is taken and therefore is a positive covenant, which cannot be registered as Land Charge and is not an identifiable Overriding interest; rather it is a minor interest and is not automatically binding to the purchaser. However it can be shown that the interest would be a non-registerable interest and that the plaintiff is in possession of the land that the interest is referring to then it is possible that the minor interest may fall under Section 70(1)(g) of the Land Registration Act of an overriding interest of a person in actual possession. In respect to the estate and the Duchess being in possession and the interest is a positive covenant towards this land there is a subsequent purchaser is not benefited or bound by a positive covenant; however is the interest binding at the common law level. According to Tulk v Moxhay a positive covenant is not binding on the subsequent purchasers, in respect to the Duchess she would not be benefited because as this case points out to “enforce a positive covenant would be to enforce a personal obligation against the person who has not covenanted. To enforce a negative covenant is only to treat the land as subject to a restriction”.
In respect to the Duchess and Woodward Construction this covenant is not enforceable because neither was a direct party to it. Therefore the positive convenant is not binding to any subsequent buyers, whereas the two negative ones would in respect to satisfying Tulk v Moxhay and Halsell v Brizell.
(2) Whether the burden of those covenants have passed to Woodward Construction Ltd;
The covenant in respect to the 1994 transfer on registered land runs with the land of the covenanter as long as it is registered at the H.M. Land Registry and fulfils the necessary requirements. This covenant has been registered as a D(ii) land charge in the land charge register; therefore the covenant in the 1994 transfer may be binding. In order to determine whether this restrictive covenant satisfies the requirements a consideration of common law principles will be discussed. The covenant there has been notice of the covenant and that the covenant is a restrictive one, i.e. it can not be positive in nature. Tulk v Moxhay adds another dimension to the running of a covenant with the land, which is that this was the initial intention. The covenant cannot run with the land if it is a scheme or a development, where the developer retains no interest in the land the formula of Elliston v Reacheris not satisfied. In this case the Duchess owns the neighbouring land. The notice is apparent in the registration and the words of the covenant running with the land shows the initial intention of the covenant to run with the land; therefore 1994 transfer is enforceable. The only way for it to be removed is via disposing it, which would include showing that the covenant is no longer applicable, i.e. the land is no longer primarily the lands of the estate and now built up so the covenant is irrelevant. However this does not seem to be the case because the land still belongs to a single estate; therefore will bind Woodward because it is registered land. This is only in the case of a negative covenant, which the restriction of building is. There may be a problem with the hedge because it indicates the upkeep of a hedge which is positive and only enforceable between the original parties to the covenant, therefore Woodward Construction is not party to it.
(3) What legal remedies (if any) she has in respect of the unlawful development;
It is possible that the Duchess could get an injunction and restoration of the land; however it is much more likely that she would be given costs for the breach of the covenant, because the court holds discretion in the remedies given at the civil law level. The court will consider whether it is reasonable for the land to be restored to its original condition? More than likely an injunction for any further building would be ordered and damages paid to the Duchess. The Bungalow that encroaches her land would more than likely be a different scenario as it is on her land and not land bound by a covenant.
(4) What legal remedies (if any) she has in respect of the encroachment and destruction of the hedge.
The destruction of the hedge would leave no remedy because the benefit of the covenant does not run with the land, in the same way as the burden does not bind the subsequent buyer Woodward Construction. The encroachment onto the Duchess’ land is a different matter because it is adverse possession and once an owner reclaims their land it is trespass. Therefore the Duchess needs to send a letter that the land belongs to her and for the bungalow to be dismantled, as well as taking an action in trespass, i.e. to evacuate the bungalow and Woodward Construction off her land. As in the case of Buckingham CC v Moran if she only writes a letter and fails to take action in the 12 year limitation period and Woodward Construction believes that it is their land then the property would be adversely possessed by Woodward Construction. The Duchess in properly regaining her property would have the following remedy which is the return of the land to the Duchess, as well as damages for the restoring the land. In this case an injunction would probably include taking the house down because it is trespassing on her land and has caused a huge amount of destruction. The best cases for remedies can be seen in environmental cases where land destruction occurs, e.g. Cambridge Water where clean up costs were ordered which would be an appropriate route to take.
Equity
- Edwards & Stockwell, 2002, Trusts and Equity, Longman
- Martin, 2001, Hanbury & Martin: Modern Equity, Sweet & Maxwell
- Pettit (1997) Equity and the Law of Trusts 8th Edition, Croyden, Butterworths Tolley
- R. Probert (2001) Trusts and the Modern Woman – establishing an interest in the family home, CFam 13.3 275
Land:
- W. Ashburner (1933) Principles of Equity 2nd Edition, London, Butterworths
- Burn, 1998, Maudsley and Burns: Land Law Case and Materials 7th Edition, Butterworths
- Cheshire & Burn (2000) The Modern Law of Real Property 16th Edition London, Butterworths
- R. Edwards & N. Stockwell (2002) Trusts and Equity, Harlow England, Longman
- Goff & Jones (1998) The Law of Restitution 5th Edition, London, Sweet & Maxwell
- Hayton & Marshall (1996) Commentary and Cases on the Law of Trusts and Equitable Remedies 10th Edition, London, Sweet & Maxwell
- Heydon, Gummow & Austin (1993) Cases and Materials on Equity & Trusts 4th Edition, London, Butterworths
- Holdsworth (1974) History of English Law Vol. 17, London, Sweet & Maxwell
- Jackson, 2003, Title by registration and concealed overriding interests: the cause and effect of antipathy to documentary proof,119 LQR 660
- Law Commission Report 271
- The Lawyer, Real Estate: Land Registration Act 2002 – the main changes, The Lawyer November 17th 2003, 31
- Maitland (1936) Maitland’s Equity 2nd Edition, Cambridge, Cambridge University Press
- J. Martin (2001) Hanbury and Martin: Modern Equity 16th Edition, London, Sweet & Maxwell
- Megarry & Wade (2000) The Law of Real Property 6th Edition, London, Sweet & Maxwell
- Meagher, Gummow & Lehane (1992) Equity: Doctrines & Remedies 3rd Edition, London, Butterworths
- Parker & Mellows (1998) The Modern Law of Trusts 7th Edition, London, Sweet & Maxwell
- Pettit (1997) Equity and the Law of Trusts 8th Edition, Croyden, Butterworths Tolley
- Riddell, 1997, Land Law, Butterworths
- L. Small & R. Pain, 2003, Land Registration Act 2002, JJ 78(1)
- Snell (2000) Principles of Equity 30th Edition, London, Sweet & Maxwell
- D.W.M Waters (1967) The Nature of Trust Beneficiary’s Interest, 45 CBR 219-283
Tort:
- Lunney & Oliphant, 2000, Tort Law: Text & Materials, Oxford Uni Press
- Prosser & Keeton, 1999, The law of Tort 5th Edition, West Law
Please note: The above essays and dissertations were written by students and then submitted to us to display and help others. Thanks to all the students who have submitted their work to us.
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