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Interpretation
Not to use as a private dwelling-house
Martin v David Wilson Homes Ltd
[2004] EWCA Civ 1027
The restrictive covenant said:"..not to use or permit or suffer any buildings erected thereon or any part thereof to be used for any other purpose than as a private dwellinghouse either with or without garages and other necessary outbuildings." This was a classic case. A developer had bought part of a plot of land to which this covenant applied and wanted to build a number of houses on it. A neighbour sought to rely upon the covenant to prevent him from doing so.
It was held that on a true construction of this particular covenant in the context of other clauses in the conveyance the restriction did not prevent the erection of further houses. The suggestion by Neuberger J (as he then was) in the first instance decision of Crest Nicholson Residential (South) Ltd v McAllister [2002] EWHC 2443 (Ch); [2003] 1 All ER 46 (decided on a different point on the appeal) that the indefinite article "a" as a general rule connotes some form of singularity is wrong. Buxton LJ at paras 22 and 44:"Contrary to a view expressed in one of the authorities [Crest Nicholson] I do not think that the expression 'a' does carry any necessary implication of singularity. 'A' is an article, not a number. When, as here, one is concerned with how any particular building shall be used, a natural way of expressing that is use 'as a private dwellinghouse'. The expression a private dwellinghouse takes its nature from its context. It does not have any fixed connotation of singularity irrespective of what the context may indicate." In other words, the covenant did not limit the number of houses to be built on the site but stated that any building that was built on the site was to be used as a private dwelling-house.
Positive or restrictive covenant?
See Blumenthal v The Church Commissioners for England [2004] EWCA Civ 1688, which is discussed on the page dealing with modification and discharge of restrictive covenants.
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