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Published: Fri, 12 Oct 2018
Small v Oliver & Saunders (Developments) Ltd  3 EGLR 141
Property law – Restrictive covenants – Damages
The claimant owned a house next to the defendant who was a housing developer. The developer had two pieces of planning permission approved for the development of land. The first was to build a new house, behind their plot of land and the other was to demolish the existing property that resided on the land. Sometime later, once the existing property had been demolished and construction was well underway on the new build property and road, the claimant submitted that he was owed a benefit of the restrictive covenant which restricted the use of the land and claimed for an injunction and/or damages.
The issue for the court to establish in this case was whether the claimant could exercise the benefit of the covenant that touched the property. The court was required to first establish whether the covenant had been annexed to the property. If this could be proven, the court had to consider whether an injunction or damages were appropriate in the circumstances, particularly as there had been a significant delay in the plaintiff bringing the action.
The court held that the claimant had the benefit of the covenant on the property and that this had been annexed in the original conveyancing in 1925.To this end, the use of the land for the access to the houses on the land breached the covenant. Damages were awarded to the claimant and these were based on the amount of money that would have reasonable been negotiated between the parties. The payment of the damages allowed for relaxation of the covenant and allowed future access to the house in question.
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