Restrictive covenant - problem?

lincroft1710

1930s houses aren't "Edwardian" (despite Edward VIII being on the throne for a few months in 1936). Houses built during reign of Edward VII (1901 - 1910) are classed as "Edwardian".

Richard_Webster

I would still argue that the covenant is not a restrictive covenant at all .

It is positive in nature and therefore only enforceable by the original covenantee against the original covenantor.

So A sells to B and extracts covenant to maintain fence/wall. B sells to C and C removes wall. A can sue B (if he can find him) , but not C. If as is customarily the case B has required C to enter into an indemnity covenant - you will often see them in TR1s, then if A sues B, B can sue C on the indemnity.

You can see it gets worse as the chain gets longer. The present owners of the nearby houses cannot sue because questions of benefit and burden laid down in the eighteenth century case of Tulk v Moxhay (about keeping Leicester Square open) don't apply because the covenants aren't restrictive in substance.

Only the original covenantee can sue. So if he is still alive (having sold the house in say 1910) (which would make him 121 as he would have had to have been 21 then to sell) he sues his buyer (who is also probably dead and his personal representatives are also probably dead). The geriatric PRs of the dead original buyer then have to sue the next person in line (assuming he can be found) and on it goes....

The chances of the chain of indemnities and suing getting back to OP is almost nil. (Very often solicitors forget to put in an indemnity covenant in conveyances/transfers and the chain is broken - for what good it did anyway.)