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Restrictive Covenants: Enforceable?

Restrictive Covenants: Enforceable?

Restrictive Covenants: Enforceable?

Date: January 11, 2016

The High Court has held that restrictive covenants that were imposed over 100 years ago were enforceable as a part of a building scheme.

Background

Where a building scheme or scheme of development exists, restrictive covenants may be enforceable by the owners of individual plots and their successors in title.

The covenants are mutually enforceable by all within the scheme, regardless of when the covenants were entered into or the order in which the plots were sold. Those who bought earlier plots can enforce the covenants against buyers of later plots. There must be an intention to impose a scheme of mutually enforceable restrictions (reciprocity of obligation) (Jamaica Mutual v Hillsborough [1989] 1 WLR 1101; Emile Elias v Pine Groves [1993] 1 WLR 305). The area covered by the scheme must be clearly defined and known to all the plot owners (Reid v Bickerstaff [1909] 2 Ch 305).

Facts

B and H owned adjoining properties. B obtained planning permission to build two new houses. B’s land was subject to restrictive covenants imposed in 1909 and 1910, including a restriction that would prevent B from building the new houses. Both conveyances contained a power for the original seller to vary the restrictive covenants.

H claimed that the restrictive covenant was enforceable against B as part of a building scheme. B argued that there was no scheme because there was no defined estate in the 1909 and 1910 conveyances and no evidence that B’s land was intended to benefit from any scheme. B also argued that the restrictive covenants only benefited the original seller and not later plot buyers.

Decision

The court found that the restrictive covenants were enforceable. It held that a building scheme had been established.

Comment

This decision demonstrates the difficulty of proving the surrounding circumstances and the parties’ intentions where restrictive covenants were imposed a long time ago. Although a building scheme was found to exist here, it seems hard to reconcile the significant differences between the 1908 and 1914 plans with the Bickerstaff rule that a buyer of a parcel of land must know both the extent of his burden and the extent of his benefit so cannot be subject to an implied obligation to buyers of an undefined and unknown area.

Case: Birdlip Ltd v Hunter and another [2015] EWHC 808 (Ch).

Claims for Accidents During Air Travel – A New Convention

 

Warning!

The laws and regulations governing accidents during travel by air are quite separate from the position on land. English courts may have jurisdiction to consider claims but the law will be applied differently and there will be different time limits for taking court proceedings (two years in the air, three years for an accident on land in the UK). Even the definition of an accident is entirely different!

Injuries to passengers on aircraft are governed by the Montreal Convention, in force since 2014, though not all countries have signed up to this. For example, the UK and USA are among the 114 signatories (as at October 2015) but Thailand is not.

In general, for a claim for personal injury on land (in England) to succeed, the claimant will need to establish that some other party was in breach of a duty and that the injury was foreseeable. In most cases this requires proof of negligence on the part of the defendant. In contrast to this, an airline based at one of the 114 countries signed up to the Convention is liable to compensate passengers for injuries caused by “accidents” without the need to establish negligence, which means there is an element of strict liability. However, there are certain cases where an event would be treated as an accident in English law, but not as an accident within the rules of the Convention.

An “accident” in the course of air travel must be “an unexpected unusual event or happening that is external to the passenger”. So in one case, a male passenger indecently assaulted a young girl in a neighbouring seat. This had nothing to do with the operation of the aircraft and was not foreseeable on the part of the airline. Nevertheless, it was “unexpected” and “unusual” and external to the victim so it was held to be an accident and the victim was compensated.

In another case, a disabled passenger attempted to leave his seat and being unable to stand up he fell, suffering an injury. This was held to be the result of his own infirmity and had nothing to do with the usual operation of the aircraft, so his claim failed. In both cases the outcome may have been the opposite if the claims had been land based!

Many claims in England are based upon slips or trips on wet or uneven surfaces. This type of claim is unlikely to succeed where an injury is sustained in this way in-flight, without some unusual event not connected with the normal operation of the aircraft contributing to the injury. Injuries caused by unusual turbulence may be accidents within the definition, whereas injuries caused by ordinary turbulence will not.

Kevin Hughes