Q:I am buying part of a former residential estate site that is subject to a number of covenants including a restrictive covenant that no new houses can be erected unless the company that developed the area several decades ago first approves the plans and

Feb. 1, 2003
This very issue was considered by the High Court in November last year (Crest Nicholson Residential (South) Ltd v Fiona Ruth McAllister (2002)). On the wording of the covenants on the title to the land concerned in that case, the High Court held that the fact the company had been dissolved meant that the covenant had been discharged so was no longer enforceable. <p></p><p> Your covenant in amongst other restrictive covenants sounds extremely similar to those considered by the court so it is likely (though not guaranteed) that if your covenant was ruled upon, the same outcome would arise. </p><p> The court viewed it to be unlikely that the parties to the original conveyances could have envisaged that, if and when the company ceased to exist, the covenant would become absolute. Other covenants on the title dealt with the number of buildings that could be erected on the land or the use to which the land could be put. The covenant requiring approval of drawings was intended to allow the company to maintain some control over the plans and drawings and elevation of any building erected on the land and thus maintain some control over its development. </p><p> As such …

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