Case law update – Restrictive covenants

The case of Jones v Oven [2018] EWCA Civ 1895; [2018] 8 WLUK 105 looked at the effect of restrictive covenants on a transfer of land. The Claimant and the Defendant are neighbours and the case concerned a four metre strip of land (the “Strip”). This case is of note as it demonstrates that “retained land” burdened by a restrictive covenant can include land not owned by the transferor at the time the covenant was imposed.

The Claimant originally owned the Defendant’s land but sold it in 2003 to residential property developers. The contract imposed restrictive covenants on both the land sold to the developer and the land retained by the claimant – the land being sold was to be used for residential purposes only, and the land retained was not to be used for any agricultural activities which would affect any residential development. The contract also required the developer or their predecessors in title to transfer the Strip to the Claimant if a particular barn was demolished.

In 2005, the developer sold the plot to the Defendant who agreed with the developer that they would transfer the Strip back to the Claimant should the barn ever be destroyed.

In 2009, the barn was destroyed, and the Defendant was obliged to transfer the Strip back to the Claimant. The issue then arose as to whether the Claimant should be subject to the same restrictive covenant in respect of carrying out any agricultural activities on the Strip which would affect the residential development. The court looked at the facts of the case and whether the definition of “retained land” to which the Claimant’s restrictive covenants would apply included the Strip. Interestingly, the court held that although the 2003 contract did not expressly include the Strip, it should be construed as including the Strip.

The judge believed the drafting to be incorrect and that the intention of the parties was that any land retained by the Claimants would be burdened by the covenant in order to protect the defendant’s predecessors in title and make any residential development viable.

This case went to the Court of Appeal in 2018 and the argument by the Claimant was again dismissed.