Seymour Road (Southampton) Ltd v Williams & Ors

Restrictive covenants imposed by a pre-1925 conveyance are not impliedly annexed to land merely because the instrument refers to vendors, successors or a development layout. The instrument must identify the benefited land, expressly or by necessary implication, and the surrounding circumstances cannot supply an absent intention to annex.

Where covenants are personal to a vendor, or benefit land retained by the vendor only while it remains unsold, they cease to be enforceable once the vendor has disposed of all relevant land or has ceased to exist. They do not thereby become absolute covenants enforceable by persons unable to give the contemplated consents or variations.

The claimant, the registered freehold proprietor of land at the rear of properties in Southampton, sought declarations that restrictive covenants contained in conveyances dated 16 November 1896 were no longer enforceable. The proposed development included a roadway giving access to five houses on previously undeveloped backland.

The covenants restricted use to private dwelling houses and prohibited use of the plot as a road or way without the vendors’ written consent. Potential beneficiaries were served, but no defendant attended the hearing. The central issues were whether the covenants had been annexed to land or formed part of a scheme of mutually enforceable covenants, and whether dissolution of the original vendor affected enforceability.

1. Declaration granted. The covenants were no longer enforceable. The claimant was entitled to the declarations sought under paragraphs 1(i) and (iii) of the claim.
2. The covenants pre-dated the Law of Property Act 1925. The applicable provision was section 58 of the Conveyancing Act 1881, which did not have the effect attributed to section 78 of the 1925 Act in Federated Homes v Mill Lodge Properties [1980] 1 WLR 594. Annexation therefore required a manifested intention in the instrument, construed with the surrounding circumstances.
3. The words referring to the vendors’ successors and assigns did not identify benefited land. The references to land being divided or staked out for building, and the power to vary the covenants, were at most equivocal. They did not establish a scheme of mutually enforceable covenants. The intermingling of positive and negative covenants, and the wording of the road covenant, further indicated that the covenants were personal to the Society.
4. At most, the covenants benefited land retained by the Society, or a successor holding undisposed-of land, until that land was sold. They did not pass to purchasers of plots sold by the Society. Once the Society had disposed of all its land, and in any event upon its dissolution, no person remained entitled to enforce the covenants.
5. The court rejected the alternative submission that constructing the roadway would not breach the covenants. If extant, the proposed roadway would breach both the dwelling-house restriction and the express prohibition on using the plot as a road or way. That issue was immaterial because the covenants had ceased to be enforceable.