Halsall v Brizell
| Jurisdiction | England & Wales |
| Date | 1957 |
| Court | Chancery Division |
Restrictive Covenant - Positive covenant - Enforcement - Building scheme - Covenant by purchasers of plots on behalf of themselves and their successors to pay annual levy to defray expenses of maintaining roads, sewers, promenade and sea wall - Positive covenant not running with the land - Whether levy enforceable per se - Appropriate levy to be decided by annual meeting of plot owners - Resolution to increase levies on tenements on plots divided into flats - Enforceability.
On May 3, 1851, 40 acres of land which afterwards became Cressington Park, Liverpool, were purchased by O. and J. for an estate in fee simple. This land was subsequently sold off by them in 174 building plots, but there remained vested in O. and J. the roads and sewers built thereunder, made in the park, a promenade and sea wall. A deed of covenant dated August 19, 1851, which was made between the several owners of plots of the one part and O. and J. of the other part, after reciting, inter alia, that O. and J. were trustees for the several and respective persons parties thereto, provided:
in maintaining and keeping in good repair the aforesaid roads, sewers, promenade and sea wall“… Seventhly. That each and every of them the said persons parties to these presents and his respective heirs executors administrators and assigns shall and will from time to time contribute and pay a due and just proportion in respect of the plot … of land in the said plan [drawn upon the deed] marked with his name … and of the dwelling-house on each such plot erected or to be erected in common with the owners of the several other plots of land described in the said plan of all costs charges and expenses”
“for the common use convenience and advantage of the owners for the time being of the several plots of land described in the same plan and of the dwelling-houses erected or to be erected thereon … and that … [if] any of the said persons parties hereto of the first part or his or their respective heirs or assigns or owner or owners for the time being of plots inscribed on the said plan … or of the dwelling-house or dwelling-houses thereon erected who shall refuse or neglect to pay such proportionate share of such costs charges and expenses the said” O. and J. “or the survivor of them or his heirs executors administrators or assigns or other the trustee or trustees for the time being under these presents” should have a right to distrain “in the same manner as landlords are authorized to do for rent in arrear ….”
In 1931 F. purchased for an estate in fee simple a plot and dwelling-house built thereon, situate in Cressington Park, and the premises were conveyed to him subject to the covenants contained in the deed of 1851 so far as “they related to and affected the said house and land and were subsisting and enforceable and capable of taking effect.” Subsequently F. let the house to five separate tenants and it was at the present time so let.
Until 1950 it was the practice at the annual general meeting of proprietors to levy an equal sum per plot upon the owners to defray the cost of maintaining the roads, sewers, promenade and sea wall, and F., and subsequently his executors, had paid such calls. But in that year and in ensuing years a resolution was passed empowering the trustees to make additional calls in respect of any plot the dwelling-house on which had been divided into two or more separate flats or dwellings. Pursuant to this resolution additional calls were made on the defendants, F.'s executors, who had declined to pay them.
On the questions whether (a) in so far as the deed of 1851 purported to make the successors of the original contracting parties liable to pay calls, was it valid and effectual at all; (b) if so, was the resolution of 1950 imposing additional calls a valid resolution:—
Held, (1) that prima facie the covenants contained in the deed were unenforceable in that (a) a positive covenant in the terms of the seventh covenant did not run with the land; (b) the particular provisions in respect of payment of calls plainly infringed the rule against perpetuities; (c) the provision for distraining on failure to pay such calls was invalid, since a right to distrain could only be annexed to a rentcharge, which this provision plainly was not; but that
(2) the defendants, who could not rely on prescription or a way of necessity, were not entitled to take advantage (as they desired) of the trusts concerning the user of the roads contained in the deed and the other benefits created by it without undertaking the obligations thereunder, viz., the payment of calls, and that on that principle they were bound by its terms.
(3) That on the true construction of the deed the resolution imposing additional calls in the manner therein specified was ultra vires and void, in that the deed contemplated payments in “a due and just proportion” relative to the plot or plots as such, and not to the user of the plots.
Liverpool District Registry.
ADJOURNED SUMMONS.
By a conveyance dated May 3, 1851, certain fields or closes of land containing in the whole 40 acres or thereabouts situate at Garston in the county of Lancaster were conveyed to one William Okell and one Alexander Colquhoun Jeffrey in consideration of the sum of £24,685 5s. for an estate in fee simple free from incumbrances. This land, the subject of the conveyance of May 3, 1851, was subsequently sold off by Okell and Jeffrey in 174 building plots, and later became known as Cressington Park, Liverpool. On the occasion of each conveyance on sale the purchasers entered into a number of covenants and those covenants were repeated in a deed of covenant dated August 19, 1851.
By that deed, which was made between the several owners of plots of the one part and the said William Okell and Alexander Colquhoun Jeffrey of the other part, after reciting the conveyance of May 3, 1851, and reciting that the said 40 acres of land had been purchased by the said Okell and Jeffrey for the purpose of laying out and dividing the same into the several plots or allotments and forming the roads, sea wall and promenade described in the plan drawn upon the said indenture with a view to the erection of a dwelling-house on each of the said plots of land and as trustees for the several and respective persons parties thereto, to each of whom the several and respective plot or plots of land in the said plan with his respective name had been severally conveyed, the indenture proceeded as follows:
“And whereas in the conveyance of each and every of the said plots of land to the said persons parties thereto are contained on the part of the grantees therein respectively named and their respective heirs executors administrators and assigns covenants similar in terms or in effect to the covenants hereinafter contained …. And whereas the site of the roads and of the sea wall and promenade described in the said plan and therein for distinction coloured yellow and also the lodge are intended to be left vested in the said William Okell and Alexander Colquhoun Jeffrey their heirs and assigns by virtue of the said conveyance of the third day of May One thousand eight hundred and fifty one Upon trust to permit and suffer the same at all times for ever to be freely used and enjoyed by the said persons parties hereto and their respective heirs and assigns and by the occupiers for the time of the said several plots of land inscribed in the said plan with the names of the said persons parties hereto and of the several dwellinghouses erected or to be erected thereon respectively and as to such plot or plots of land as shall not be allotted to or taken...
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