Published: Fri, 12 Oct 2018
Rogers v Hosegood  2 Ch 388
Property law – Restrictive covenant running with the land
The owners of land conveyed a plot to a purchaser on the basis that no more than one dwelling should be erected at any one time. Further to this, it was agreed that the dwelling that stood should be for private residence only. The covenant was in place to bind the purchaser as well as future owners of the land. Shortly after the conveyance of the property, the mortgagor conveyed a different plot of land to another purchaser who had no knowledge of the covenant on the first plot of land. The second purchaser built a house upon the land. The defendant purchased the land from the second purchaser’s trustees after death and began building work to build a block of residential flats on the land. The plaintiff’s trustees, by power provided from the plaintiff’s will, brought an action to enforce the restrictive covenant.
There were two important issues for the court to consider in this case. The first was whether the covenant could run with the land, after the death of the original parties who had agreed on the covenants on the properties. If this could be established, the second issue to consider was whether the construction of a block of residential flats could breach the covenant that the plaintiffs were trying to enforce.
The court found that the plaintiff trustee could enforce the restrictive covenant on the basis that the benefit of the covenant had transferred with the land. The court subsequently found that the construction of a large block of flats would have breached the restrictive covenant in question.
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