Rugby fans of all stripes (even those who do not support the club in question) were no doubt pleased at the outcome of a recent case involving Bath RFC and a long-standing restrictive covenant concerning its ground, known as ‘the Rec’.
The covenant, which pre-dated the Law of Property Act 1925, prevented the use of the land concerned for any trade or business which may be considered a nuisance, annoyance or disturbance. Bath Rugby Ltd, who had sought to redevelop the stadium and surrounding land to improve facilities for spectators over a number of years, faced persistent opposition from local residents and others to their project, with the restrictive covenant being cited in the process.
Seeking to make progress with their plans, Bath Rugby Ltd made an application under Section 84(2) of the Law of Property Act 1925, arguing that its land was no longer affected by the restrictive covenant. The Court of Appeal granted Bath’s wish, on the basis that the land meant to be protected by the covenant was not sufficiently identified by the conveyance which imposed it.
Bath Rugby Ltd successfully argued that because the land intended to be covered was not clearly defined, there could be no identifiable beneficiary to the covenant. The Defendants in the case brought contended that they had the benefit of the covenant by annexation. At the initial High Court hearing, it was held that the effect of the 1922 conveyance was to annex the benefit of the covenant to the vendor and its tenants, as the covenant referred to the “adjoining land or the neighborhood”.
However, the Court of Appeal ruled that the words ‘adjoining land or the neighbourhood’ were insufficient and had been artificially construed by the High Court. It also ruled that the covenant had not been annexed to the land so therefore the benefit was not enforceable.
The need to clearly establish the land intended to benefit from a covenant, and the implications of failing do so, is made evident in this case.
Despite the fact that many older covenants tend to be disregarded, in some instances it is still possible to enforce them and therefore they should be taken into account when seeking to make changes to a property in order to discover if they remain binding.
For anyone seeking to enforce a covenant, it’s important to ascertain from the plans whether you have benefit from it before investing time and money in a legal challenge.
The case also highlights that if you are seeking to impose a covenant, you need to employ expert solicitors to get the drafting right. With the ability to draw detailed, accurate plans and with modern drafting, a specialist solicitor should be able to ensure your covenant is watertight and enforceable many years in the future.
