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Published: Fri, 12 Oct 2018
Stilwell v Blackman  3 All ER 514
Property law – Annexation – Restrictive covenant
A conveyance between the predecessors of the parties contained a restrictive covenant requiring that the purchaser did not use the land for any purpose except for a private garden and for keeping no more than 24 hens on the patch of land. The restrictive covenant was expressly signed to the plaintiff. The defendant asked to have the covenant dropped but the plaintiff refused, at which point the defendant parked old cars on the land, in increasing numbers. The plaintiff later issued a writ for an injunction on the basis of the breach of the restrictive covenants. The defendant believed that as the plaintiff had sold of another portion of the land, that the covenant could no longer be enforced as the ‘whole’ of the property no longer existed.
The court was required to establish the construction of the covenant in the circumstances and to understand whether it had been passed from the parties’ predecessors to the parties and also, whether the covenant had passed with the land as a result of the sale of the piece of land.
The court held that it was a matter of construction whether or not the annexation of the restrictive covenant had passed between the parties’ predecessors. In line with the principles for freedom of contract, the court held that the benefit of the restrictive covenant, in this case, has been expressly passed to the plaintiff and had maintained to the current date. On this basis, the covenant could be enforced by the plaintiff.
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