The title to a property may contain restrictive covenants which prohibit the property owner from doing something. An example of a restrictive covenant may be that no works to the property may be carried out without the written consent of the previous owners.

Churchill v Temple and others [2010] EWHC 3369 (Ch) concerned a property over which there was a restrictive covenant requiring consent from “the Vendors” to demolishing and rebuilding the property. The High Court had to decide whether the reference to “the Vendors” included their successors in title (the current owners of the adjoining property). If it decided that successors in title were not included, the Court then had to decide whether this meant that the death of “the Vendors” freed the owners of the property from needing to obtain consent, or made it impossible for them to obtain consent (making the prohibition on carrying out works absolute).

Because the conveyance which contained the covenant was inconsistent in its use of terms “the Vendors” and “the Vendors and their successors in title”, there was some ambiguity as to the meaning of “the Vendors”. However, the Court held that a literal reading of the covenant would not cause any absurdity in the outcome and therefore concluded that “the Vendors” did not include successors in title. Consequently, the owners of the property did not need to obtain consent to the works from the current adjoining owners, as the Court found that the restrictive covenant had been discharged on the death of “the Vendors”.

The Churchill case highlights that, in assessing the effect and enforcement of a restrictive covenant, you must look at the exact wording of the covenant in the context of the document, in which it is contained, as a whole. It is also a warning to solicitors to be consistent in their drafting.

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