Robert Atkinson & Ors v Richard Browne & Ors

Restrictive covenants registered against land may remain relevant to the management of an estate even where no person can enforce them as covenants. An association’s constitution is construed contractually and as a whole. Where its object is to preserve the estate’s character, amenities and privacy in accordance with covenants imposed on properties, the committee may take those restrictions into account when deciding whether to approve works.

The ad medium filum viae presumption is readily displaced in a building-estate context by plans, conveyancing language, rights of way and the surrounding circumstances. An unincorporated residents’ association may acquire land by adverse possession through successive committees acting jointly on behalf of its members, with the land held on trust for the members. Rectification was refused where the claimants failed to establish mistake.

The claimants owned properties on the Hockering Estate. They sought declarations that the residents’ association could neither enforce restrictive covenants affecting their properties nor take those covenants into account when determining applications for works. They also challenged the registration of the association’s trustees as proprietors of estate roads, verges and bellmouths, alleging mistake and relying on the ad medium filum viae presumption.

The trial was limited to liability and related declaratory issues. The court considered the enforceability of the covenants, the contractual effect of the association’s constitution, title to the roads, adverse possession, the status of the trustees and alleged acknowledgments of title.

1. Covenants. The association could not directly enforce the covenants as successor in title because it owned no land benefited by the relevant covenants, and no building scheme or chain of assignments was relied upon. That conclusion did not determine the contractual construction of the constitution.
2. Constitution. The constitution was binding between the association and its members. Clause 2(a), read with clause 3(g), referred to covenants imposed on the individual properties and did not require the committee to undertake the technically difficult inquiry whether each covenant was enforceable by a particular person. Restrictions which remained relevant to the preservation of the estate’s current residential character, amenities and privacy could therefore be taken into account. If approval was refused, the resulting restraint arose from the constitution, not direct enforcement of the covenants.
3. Road ownership. The ad medium filum viae presumption, if applicable, was displaced by the conveyancing plans, strong boundary lines, grants of rights of way over the entire roads, road-maintenance obligations and the estate context. The claimants therefore failed to establish that their properties, or their predecessors’ properties, included the roadways up to the centre line.
4. Adverse possession. The association’s predecessors had factual possession and the intention to possess. Maintaining, repairing, controlling access to, signing, mowing and otherwise managing the roads and verges amounted to conduct expected of an occupying owner. Successive committees could aggregate their periods of joint possession. The trustees held the resulting title for the association’s members, whether under the constitution or constructively.
5. Trustees and mistake. The constitution permitted trustees to hold real property and trustees had in fact been appointed. Formalities under Law of Property Act 1925 did not prevent a constructive trust arising. The claimants did not establish a mistake justifying rectification under Land Registration Act 2002. The claim failed on the road-title issues.