Andrew Francis seeks certainty in the construction of freehold restrictive covenants
Just two short words can cause havoc, and, in property law, it is often the seemingly innocuous ones which are to blame.
Under many restrictive covenants affecting freehold land the consent of another party or its agent is needed before building work or alterations can begin. A problem arises where the identity of that party is not clear. In some cases it may be doubtful whether anyone’s consent is required and what the effect of there being no one to grant consent is.
Wording and construction
Here are some forms of words commonly encountered in restrictive covenants which can evade certain interpretation:
the consent of the vendor or the vendor’s successors (or heirs and assigns);
the consent of the vendor;
the consent of the company (or individual); and
the consent of the transferor.
Though solicitors and surveyors are not empowered to grant or withhold consent without a principal, references to them can also cause difficulties.
An instrument may contain wording differences eg the use of the words ‘the vendor and his successors in title’ in one clause
