Restrictive Covenants – Considering what land benefits from a covenant
It is well established that in order for a covenant to be binding it must attach to, or be annexed to, land which actually benefits from that covenant.
However, in Re Coplestone’s Application, a tribunal recently had to consider whether an objection to a variation of a covenant could be validly raised based on the effect of the variation on land which did not benefit from the covenant but where the owners also owned land which did benefit from it.
The facts of the case were that the parties applying for the variation wished to build a new dwelling but their land was subject to a covenant which sought to prevent that. The objecting owners owned a house with gardens and grounds; the covenant at issue attached to those gardens and grounds but not to the house itself.
As the objecting owners raised their objection based on the likely adverse effect on their enjoyment of the house, not on their enjoyment of their garden and grounds, the tribunal had to decide whether the objections raised in respect of the house could be taken into consideration when the covenant did not attach to the house. The tribunal decided it was permissible to consider the effect of the variation on the whole of the land owned by the objector, despite the covenant attaching to only part of the objectors land.
In summary, when assessing the effect of a covenant, it is now important to assess its benefit not only in respect of land to which the covenant attaches and benefits but also to land which may be owned in conjunction with the benefitting land.
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