Victory in the Court of Appeal: Andrew Francis tackles the enforceability of covenants
- Following the Court of Appeal’s decision in Bath Rugby Ltd v Greenwood, this article looks at the problem of deciding whether a covenant can be enforceable by anyone who claims the benefit of it and who is not the original covenantee.
To adapt the words of a onetime resident at Bath, it is a truth universally acknowledged by real property lawyers that in order to be of any practical value, a restrictive covenant affecting freehold land must have an enforcing party.
To decide whether a covenant achieves that status can be difficult. The trickiest part of the analysis of a covenant is not always its meaning, or whether it binds anyone, but whether anyone can enforce it. Over more than two centuries, the courts have devised rules about how the burden of a covenant may run and also working out how the right to enforce (‘the benefit’) of a covenant may be claimed; in each case, with the assistance of statutes for covenants imposed after 1925.
