Development can proceed after covenants declared unenforceable

A company has won the right to proceed with a housing development after a court declared that covenants which might have prevented the project were no longer enforceable.

The company had been granted planning permission to build on a landlocked plot behind some houses. To complete the project it needed to provide an access road through the grounds of one of those houses, which it also owned.

However, the land was subject to covenants in favour of a building society which had owned the land in the early 1900s. It had ceased to exist in 1929 and the issue arose as to whether those covenants, which prevented the building of a road, were still enforceable.

The High Court ruled that they were not as the building society no longer existed. The judge added that even if the society did still exist, the covenants would still not be enforceable. This was because they were only intended to be exercisable by the society or its successors while they held land in the area.

Once they had disposed of all the land that might be affected, the covenants could not be enforced against new owners.

 

March 2010

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