Jarvis Homes Ltd v Marshall & Anor

A restrictive covenant requiring land to be used as a private residence only may govern the whole conveyed land and each part of its curtilage, including ancillary residential buildings and activities. Where the covenant binds the land and persons deriving title under the covenantor, it can extend to tenants, licensees and grantees of rights over the land. A roadway serving a separate adjoining housing development therefore breaches the covenant when used under such rights. A covenant primarily regulating use does not, without clear words, prohibit construction of an item whose use is permissible. Separately, a covenant permitting only one two-storey private dwelling house with necessary outbuildings and garage prohibits lamp-posts on the land.

Jarvis Homes had contracted to acquire land subject to covenants in a 1964 conveyance benefiting adjoining land owned by the Marshalls. It proposed demolishing the existing dwelling, constructing a replacement dwelling, and building a roadway across the land to serve ten houses on an adjoining development site.

His Honour Judge Howarth, sitting as a deputy judge of the Chancery Division, held that the proposed roadway would not infringe the covenant. The appeal concerned the meaning of private residence only, the effect of wording binding persons deriving title under the purchaser, and whether the roadway or proposed lamp-posts would infringe the covenants.

The appeal was allowed. Lord Justice Neuberger gave the leading judgment, with whom Lord Justices Rix and Thorpe agreed.

1. Clause 2(b). The words the same naturally referred to the composite expression covering the conveyed land, any part of it, and buildings or erections on it. The requirement to use the land as a private residence only therefore applied to the land itself and not merely to the dwelling house. A private residence could include its curtilage and ancillary residential activities, buildings and structures, such as garages, gardens and other facilities.
2. Persons using the roadway. The opening words of clause 2 showed that the covenant was intended to bind the land and persons deriving title under the purchaser. That included a person granted a right of way over part of the land, since a right of way was a legal or equitable interest in land. Use of the roadway by tenants, licensees or grantees of rights of way for access to the adjoining development would therefore constitute a breach. The reasoning was supported by Mander v Falcke [1891] 2 Ch 554 at pp 557–558.
3. Construction. The court inclined to the view that, even reading clause 2(b) alone, arranging for third-party use of part of the land for another purpose could breach a covenant to use the premises for the permitted purpose only. This point was unnecessary to decide. If the use of an item were permissible, clause 2(b), being primarily concerned with use rather than building works, would require very clear words before prohibiting its construction.
4. Clause 2(a). The clause was directed to what could be built on the land. Lamp-posts were erections and did not fall within the permitted category of one two-storey private dwelling house with necessary outbuildings and garage. Their installation on the land would therefore breach clause 2(a). The court left open the undeveloped argument that clause 2(a) might also extend to building works generally and prohibit construction of the roadway itself.
5. Other authorities. Rolls v Miller (1884) 27 Ch. D 71 was distinguishable because the covenant and issue there were materially different. Elliott v Safeway Stores plc [1995] 1 WLR 1396 and Co-operative Retail Services Limited v Tesco Stores Limited (1998) 76 P&CR 328 did not govern the construction of this covenant. Restrictive covenants must be construed in their own legal and factual contexts.

1. Court of Appeal (Civil Division). In [2004] EWCA Civ 839, the appeal was allowed.
2. High Court of Justice, Chancery Division. His Honour Judge Howarth, sitting as a deputy judge, decided on 5 November 2003 that the proposed roadway would not infringe clause 2.