Sharon Shac-Yin Cheung & Anor. v Neil John Mackenzie

Sharon Shac-Yin Cheung & Anor. v Neil John Mackenzie

The second part of paragraph 11 of the Third Schedule to the October 1947 conveyance reserves to the Governors (now the Whitgift Foundation) the right to allow departures from the restrictive covenants, including waivers or releases, even after the land has been conveyed. This right qualifies the benefit of the covenants acquired by subsequent purchasers such as the claimant. The words used are sufficiently clear to permit this construction, and the commercial context supports vesting such a power in the Governors.

Parties
Defendant/appellant: Sharon Shac-Yin Cheung; Defendant/appellant: Infinity Homes & Developments Limited; Claimant/respondent: Neil John Mackenzie
Jurisdiction
England and Wales
Judgment Date
08 February 2023
Procedural Posture
Appeal / Judgment on Appeal
Outcome
Appeal allowed
Legal Topics
Restrictive Covenants, Interpretation of Deeds, Land Law, Enforcement of Covenants
Property Law Contract Law Restrictive Covenants Interpretation of Deeds Land Law Enforcement of Covenants

Case Brief

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Parties

Sharon Shac-Yin Cheung

Defendant/appellant

Infinity Homes & Developments Limited

Defendant/appellant

Neil John Mackenzie

Claimant/respondent

Procedural Posture

Appeal / Judgment on Appeal

Legal Issues

  1. 1 Whether paragraph 11 of the Third Schedule to the October 1947 conveyance allows the Whitgift Foundation to vary or release restrictive covenants affecting No. 444 Selsdon Road
  2. 2 Whether the claimant as owner of No. 432 can enforce the restrictive covenant against the defendants

Ratio Decidendi

The second part of paragraph 11 of the Third Schedule to the October 1947 conveyance reserves to the Governors (now the Whitgift Foundation) the right to allow departures from the restrictive covenants, including waivers or releases, even after the land has been conveyed. This right qualifies the benefit of the covenants acquired by subsequent purchasers such as the claimant. The words used are sufficiently clear to permit this construction, and the commercial context supports vesting such a power in the Governors.

Court Disposition

Appeal allowed

Orders

  • Declaration that the Whitgift Foundation has the right to allow departures from the restrictive covenants affecting No. 444 Selsdon Road, including waivers or releases, as per paragraph 11 of the Third Schedule to the October 1947 conveyance.