Mahon v Sims
| Jurisdiction | England & Wales |
| Judgment Date | 08 June 2005 |
| Date | 08 June 2005 |
| Court | Queen's Bench Division |
QUEEN'S BENCH DIVISION
Before Mr Justice Hart
Land - restrictive covenant - 'transferors' includes successors in title - implied term that consent should not be unreasonably withheld
Where a transfer of land contained a restrictive covenant whereby the transferees covenanted with the transferors not to erect any building on the land other than a greenhouse, shed or garage, in accordance with plans approved by the transferors, the meaning of "the transferors" included their successors in title.
Moreover, a term should be implied into the covenant that any approval of plans should not be unreasonably withheld.
Mr Justice Hart, sitting as a judge of the Queen's Bench Division in the Birmingham District Registry, so held in allowing in part the appeal of the defendants, Robert Fraser Sims and Joan Margaret Sims, against the order of Judge Kirkham following the trial of preliminary issues in an action between owners of neighbouring houses, brought by the claimants, Christopher Leslie Mahon and Rosemary Jacklyn Pietrzykowski, to enforce the terms of a restrictive covenant made between the claimants' predecessors in title (Mr and Mrs Houghton) and the defendants' predecessors in title (Mr and Mrs Martin) to a piece of garden land.
The transfer of the garden contained a restrictive covenant by which the transferees (Mr and Mrs Houghton) covenanted with the transferors (Mr and Mrs Martin) to "bind the land hereby transferred into whosoever hands the same may come" and not to erect any building other than a greenhouse, garden shed or domestic garage in accordance with plans which had been previously approved by the transferors.
After purchasing their house from Mr and Mrs Martin, the defendants expressed a desire to construct a double garage and store on part of the garden land transferred.
Although Mr and Mrs Houghton raised no objection to the plans, the claimants did object and brought the action in which a number of preliminary issues were raised, namely, inter alia:
(i) whether, under the terms of the covenant, the defendants required only the consent of Mr and Mrs Houghton in order to proceed with the construction; and (ii) whether it was an implied term of the covenant that any such consent should not be unreasonably withheld.
The judge at first instance held, with regard to (i) that the defendants required the consent of the claimants alone, with regard to (ii)...
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Table of Cases
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