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    • We have finally managed to obtain the transcript of this case.

      The judge's reasoning is very useful and will certainly be helpful in any other cases relating to third-party rights where the customer has contracted with the courier company by using a broker.
      This is generally speaking the problem with using PackLink who are domiciled in Spain and very conveniently out of reach of the British justice system.

      Frankly I don't think that is any accident.

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      OT APPROVED, 365MC637, FAROOQ, EVRi, 12.07.23 (BRENT) - J v4.pdf
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Restrictive covenants: who is the beneficiary?


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I wonder if someone can help me with this?

 

There are a number of restrictive covenants against my property that prevent a range of activities from building a shed, converting the garage and running a business to not keeping poultry and not hanging out laundry on certain days.

 

Some of them have what I think are clear beneficiaries; there are some that grant right of access to areas of my land to my neighbors, for instance.

 

My question is this: for the more general ones (like not keeping poultry!), who is the beneficiary?

 

I'd like to get some or all of them released and would like to know who to get agreement from.

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I wonder if someone can help me with this?

 

There are a number of restrictive covenants against my property that prevent a range of activities from building a shed, converting the garage and running a business to not keeping poultry and not hanging out laundry on certain days.

 

Some of them have what I think are clear beneficiaries; there are some that grant right of access to areas of my land to my neighbors, for instance.

 

My question is this: for the more general ones (like not keeping poultry!), who is the beneficiary?

 

I'd like to get some or all of them released and would like to know who to get agreement from.

 

The beneficiary is the person who they were originally Covenanted to : the covenant should not only state the action (positive or negative) but also the original covenantor and covanentee.

As the covenant is a "legalised version of a promise", it should say what the promise is, and who was promising it to whom.

 

The benefit of the covenant may also have been passed along with the legal estate of the land (if you posses the leasehold), or to the previous freeholder (or their successor in title) if you posses freehold of "sale of part" of a (previously split) freehold.

 

I own a freehold. It has a restrictive covenant in favour of the predecessor of the local council (who I presume held the freehold of the land at some point).

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The document in question makes reference to three businesses which are all now dissolved.

 

Company A is referred to as "the Transferor", company B as "the Vendor" and company C as "the Transferee". There is also a party called "the Guarantor" who appears to be the owner of company C but is referred to in person rather than as the owner.

 

Does anyone know what the difference is between a Transferor and a Vendor? They seem to mean the same to me!

 

Most of the clauses in the covenant refer to those two companies.

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Indeed. As I understand it there are three ways to dealing with them:

 

1. Express Release or Variation

 

When an agreement is reached between the holders of the burden and the benefit to release or alter the covenant, a "deed of release" or "deed of variation" can be applied for via the Land Registry. My preferred option.

 

2. Indemnity Insurance

 

An insurance policy can be purchased which in effect covers the costs in the event that the beneficiary claims against a breach of covenant. An ongoing yearly cost, can't be done once you've contacted the beneficiaries to attempt (1) or if you deliberately intend to breach the covenant.

 

3. Lands Tribunal

 

You go to a tribunal and present your reasons why the covenant should be released or varied. The acceptable reasons are pretty narrow and boil down to:

 

A) The covenant is obsolete and cannot be enforced

B) The covenant impedes reasonable use of the property for no material benefit to the beneficiary

C) No loss or injury will be caused to the beneficiary by the variation or release

D) An agreement has been reached between the parties

 

The tribunal can order that costs and/or compensation should be paid to the beneficiary in order for the release or variation to be granted.

 

 

So it seems to me that the least expensive, and hopefully easiest way forward is to find and agree with the beneficiary that some or all the clauses be released. Hence my question :roll:

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