Restrictive Covenants - Passing Of The Benefit Of Restrictive Covenants To Successors-In-Title

89 Holland Park (Management) Ltd v Hicks [2013] EWHC 391

Facts

The First Claimant was the freehold owner of 89 Holland Park and the Second to Seventh Claimants were lessees of five of the six flats there. The Defendant was the owner of the land adjoining 89 Holland Park,

The freehold of No.89 and the land adjacent to No.89 were previously owned by R. In 1965, R conveyed the land adjacent to No.89 to F. The transfer contained certain restrictive covenants and these were then varied by a subsequent deed in 1968. The 1968 Deed referred to R as the 'Adjoining Owner' and F as the 'Building Owner' and contained the following clauses:

Clause 2(b) stated that the Building Owner would not make any applications in respect of any plans, drawings or specifications unless the application had previously been approved by the Adjoining Owner.

Clause 3 stated that no work would be started on the land until the plans, drawings and specifications of the buildings had been approved by the Adjoining Owner.

Clause 6 stated that "[t]he expressions 'Building Owner' and 'Adjoining Owner' shall where the context permits include their respective executors administrators and assigns".

The freehold of No.89 and of the adjoining land were subsequently conveyed to the First Claimant and the Defendant respectively. The Claimants sought declarations that they were entitled to the benefit of the covenants contained in the 1968 Deed which had been entered into by the predecessors of the First Claimant and the Defendant (as the Adjoining Owner and the Building Owner respectively).

Issues

1. Whether the Claimants were entitled to enforce the covenants in clauses 2(b) and 3 of the 1968 Deed.

2. Whether the covenant in clause 2(b) was binding on the Defendant.

3. If the covenants in clauses 2(b) and 3 were enforceable, whether they were subject to an implied proviso that the approval of the Adjoining Owner may not be withheld unreasonably.

4. Whether the Second to Seventh Claimants, as lessees of 89 Holland Park, were able to enforce clauses 2(b) and 3.

Decision

On the first issue, it was held that the benefit of the covenants in clauses 2(b) and 3 of the 1968 Deed passed to the successors-in-title and therefore to the First Claimant under s.78 LPA 1925. The Defendant had submitted that the terms of the 1968 Deed showed that the parties did not intend for the benefit of the covenants to pass to the successorsin- title of No. 89 without an express contractual assignment. It was...