Home Information Cases Clarke v Murphy (2009)

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Clarke v Murphy (2009)

Summary

A building scheme existed in respect of certain properties so that each property owner could object to a proposed discharge or modification of restrictive covenants in respect of one of the properties.

Facts

The tribunal was required to determine as a preliminary issue whether the fourth and fifth objectors (D) were entitled to object to an application by the applicant (C) seeking the discharge or modification of restrictive covenants that burdened her property. The property had been constructed along with eight others by the same builder (G) in the 1950s and all were of a similar type. All of the properties contained restrictive covenants that essentially prevented a property from being occupied by more than one dwelling house and from that dwelling house being sub-divided. The objectors and C derived their title under a common vendor, namely G. C obtained outline planning permission for the demolition of her existing dwelling and the erection of three new dwellings in its place. C applied to the tribunal for modification or discharge of those covenants so as to permit such development to take place. C contended that whilst the other objectors could rely on the restrictive covenants on her property as they derived their title through conveyances from G which post-dated G's conveyance to C's predecessor in title, D could not as their title predated that of C's predecessor in title. In particular, C submitted that, having regard to the wording of the relevant covenants, when C's predecessor in title took the original conveyance of her property from G that predecessor covenanted for the benefit of all of the land then still vested in G such that those persons who subsequently bought a property from G bought property which enjoyed the benefit of C's restrictive covenants. D contended that a building scheme existed in respect of the properties so that they had the benefit of the restrictive covenants on C's property and could object to her application.

Held

A building scheme was created in respect of the properties. That was so as (a) the objectors and C derived titled from a common vendor, namely G; (b) G had laid out an entire estate consisting of the nine properties before selling any of them and it was clear that G had prepared a standard form conveyance for selling off the properties and had intended to impose the same restrictive covenants on every property and duly did so; (c) the restrictions were intended by G to be and were for the benefit of all the properties intended to be sold; (d) the original purchasers purchased their properties upon the footing that the restrictions were to enure for the benefit of the other properties sold by G, Dolphin's Conveyance, Re (1970) Ch 654 Ch D and Jamaica Mutual Life Assurance Society v Hillsborough (1989) 1 WLR 1101 PC (Jam) considered, Elliston v Reacher (1908) 2 Ch 374 Ch D followed. Accordingly, as a building scheme, it followed that D were entitled to the benefit of the restrictive covenants given by C's predecessor in title in respect of her property and they were entitled to object to C's application.

Preliminary issue determined

Lands Tribunal
Judge Huskinson
Judgment date
12 May 2009
References

​(2009) 22 EG 118 (CS) : LTL 1/6/2009

Practice areas