A restrictive covenant may, by its wording or intent, be tied closely to the original party rather than the plot of land. In Ball & Anor v Fulton [2025], the covenant required approval for development from the “Vendor” (i.e. the seller). The tribunal analysed the deed and concluded that “Vendor” referred solely to Edward Warfield (the original owner) who had since died, not to his successors, something the document would have included if intended. As the wording did not include successors, the covenant was held to be personal to him and therefore obsolete. The tribunal ordered that the covenant be removed so that the owner of the adjoining property could develop their land.
Why does this matter?
For developers and anyone acquiring land the case highlights two key risks:
- Covenants might not be enforceable after a “Vendor” dies (or the original company goes bust) or disposes of the land.
- Precise language in deeds is critical.
It’s a reminder to have your conveyancers review the exact wording, not just assume successor rights.
How did the Upper Tribunal approach it?
The tribunal applied Section 84(1)(a) of the Law of Property Act 1925, permitting discharge of covenants that are “obsolete”, a category that includes covenants personal to a dead original beneficiary.
Key considerations included:
- Covenant wording – “Vendor” was not defined to include successors.
- Context and timing – The covenant concerned the vendor’s initial ability to control any building next door to his property in around 1962 which was consistent with a one-off, personal approval event.
- Evidence of intent – Other covenants within the transfer deed when the land was sold referenced successors, but this one didn’t. That omission indicated a personal covenant.
Why developers should take note
- Enhanced certainty – If a covenant is personal and obsolete, developers can apply to the Upper Tribunal under Section 84 to remove it and allow development to proceed.
- Negotiation leverage – With such risk, original covenant holders may be more willing to allow release or modification.
- Cost-savings – Save time and legal expenses by identifying personal covenants early.
Practical steps for land transactions
- Careful contract drafting: If you’re going to be the covenant holder and want to preserve enforcement, ensure the covenant deed explicitly includes successors and addresses death or assignment.
- Early deed review: Scrutinise old conveyances for successor language before acquisition or planning.
- Section 84 due diligence: If development is blocked by a covenant, check whether it may be discharged by the tribunal on the ground that it is obsolete.
Tribunal takeaway
The tribunal reaffirmed that clear drafting is crucial and its role under Section 84 enables factual-based correction where intent isn’t aligned with successors or ongoing use. It shows a pragmatic, developer-friendly path to clearing old private rights, especially when their original rationale no longer applies.
The Ball & Anor v Fulton decision is a timely caution: don’t assume restrictive covenants are evergreen just because they look transferable. If “Vendor” isn’t defined to include successors, and there’s no reference to enforcement beyond the original vendor, then it may be unenforceable as obsolete. For developers, this can unlock opportunities and for covenant holders, it underlines the need for succession-proof drafting.
For more information on our Restrictive Covenant Services, visit the Property Litigation section of our website.
