For the restrictive covenant to become enforceable by a successor in title, the benefit has to have passed to the particular person aiming to enforce it (by annexation, assignment, or by there being a building scheme) additionally it must: * be restrictive; * 'touch and concern the land'; and the land benefiting from the covenant must be identifiable Benefit of the Restrictive Covenant Needs To Have Passed This normally relates to the original drafting of the Restrictive Covenant: As an example, a recent case involved an 1896 restrictive covenant with 'the vendors, their successors and assignees' to never use land in a particular way 'without the consent in writing of the vendors'. Therefore, whilst the restrictive covenant was with successors in title, the clause stated that consent needed to be attained from the vendors (without any mention of successors in title). The particular issue here seemed to be that the original vendor (who had the benefit of the restrictive covenant) was actually a building society that had been dissolved in 1929. The uncertainty was whether the restrictive covenant still enforceable by the building society's successors in title? The answer was 'no'. Firstly, the 1896 document did not identify the land to which the restrictive covenant was annexed (ie the land that was meant to benefit from the restrictions being imposed through the restrictive covenant). Consequently, it was unenforceable. Next, the wording meant that the restrictive covenant was personal to the building society and can only be enforced by it (which meant the restrictive covenant became unenforceable when the building society was dissolved). Cases of this sort always depend upon their particular facts. However, it's just an useful illustration of the importance of checking that the land to be benefited is adequately identified (if only by implication), and also checking whether or not the restrictive covenant is personal to the original seller. Yet another example is where a restrictive covenant said that any alterations to the building needed to be approved by 'the seller'. However, the seller had died and the question then arose as to whether his successors in title had the benefit of the restrictive covenant and so could enforce it. The document involved referred to 'successors in title' in some places, and in others did not. The court therefore placed a considerable importance on the fact that successors in title weren't referenced in this particular clause and determined that it was a restrictive covenant personal to the original seller (and so not enforceable by successors in title). (Margeson 2008). 'Restrictive Covenant must 'Touch and Concern the Land' To 'touch and concern the land' the restrictive covenant should be imposed for the benefit of or to enhance the value of the land retained by the person with the benefit. Section 78 of the Law of Property Act 1925 assists with interpretation by proclaiming that the benefit of a restrictive covenant will be for all of the (retained) land except when there exists a contrary intention. It is also important to remember that a restrictive covenant needs to be registered to be enforceable. The person with the benefit of the restrictive covenant must have registered the benefit at the Land Charges Registry. However, this does not apply to new restrictive covenants when the transaction imposing the restrictive covenants itself requires compulsory registration.
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This article looks at the factors required to determine whether or not a Restrictive Covenant is enforceable
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