This question concerns the enforcement of covenants affecting freehold land. In order to logically address the issues raised in this question, we will begin with a brief outline of the law relating to such covenants and then we will deal with each party/case individually. In this context, a covenant is simply an agreement contained in a deed normally made between one party selling a portion of their land and the other party purchasing it.
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These covenants are used as a form of private planning control by the vendor to ensure that they can ‘shape’ the uses to which the land they are selling is put to e.g. a covenant may dictate that no building above three floors can be erected on the servient land so as to preserve the view of the retained dominant lands. Most difficulties arise when such lands have been sold on to different owners and the owner of the dominant land seeks to enforce a covenant against the servient land. This is the case in the question posed. When addressing issues relating to enforcing covenants, it is essential to first identify who the original covenantee was i.e. whose land was benefited by the covenants agreed to and who were the original covenantors i.e. whose lands were burdened by the agreements. In this case, Lola was the original covenantee and Anthony, Bob and Cait were the original covenantors. This tells us that Lola’s land benefited from the requirements of the covenants and A, B and C’s were burdened by them. The core question now is that bearing in mind that all these original parties have sold their lands, can the current owner of the western plot of land, May, enforce the original covenants against D, E and F who are the current owners of the eastern plots. The law on this matter is complex but the underlying rationale is clear and it is critical to focus on this: because the current parties in this dispute are not the original parties to the agreement, the courts have always been very careful not to burden land with any unnecessary restrictions which may over time hamper its use and ultimately its saleability . The efficient use of land is essential to commerce and society and it should ideally be unhindered by private agreements made between parties who no longer own it. For this reason, the courts apply very strict tests when ordering the enforcement of such covenants. In order to enforce a covenant, it must be demonstrated by May that she is entitled to the benefit of the covenants and that D, E and F are subject to the burden of them. Unless both of these can be established,
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