Birdlip Ltd v Hunter & Anor

Birdlip Ltd v Hunter & Anor

There are realistic prospects that the Defendants can establish at trial the existence of a mutually enforceable building scheme over the estate as shown in the 1908 plan, and that the restrictive covenants in the 1909 and 1910 conveyances are enforceable between owners of land within those boundaries. The existence of subsequent estate plans and minor discrepancies do not, as a matter of law or fact, preclude enforceability or sufficiently undermine the definition of the area subject to the scheme.

Parties
Claimant: Birdlip Limited; Defendant: Andrew Pennington Harvard Hunter; Defendant: Michelle Hunter
Jurisdiction
England and Wales
Judgment Date
04 November 2014
Procedural Posture
Civil / Summary Judgment Application Under Part 24 CPR
Outcome
Application for summary judgment dismissed
Legal Topics
Restrictive Covenants, Building Schemes, Mutual Enforcement, Summary Judgment, Conveyancing
Property Law Equity Restrictive Covenants Building Schemes Mutual Enforcement Summary Judgment Conveyancing

Case Brief

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Parties

Birdlip Limited

Claimant

Andrew Pennington Harvard Hunter

Defendant

Michelle Hunter

Defendant

Procedural Posture

Civil / Summary Judgment Application Under Part 24 CPR

Legal Issues

  1. 1 Whether restrictive covenants in 1909 and 1910 conveyances are enforceable by Defendants as owners of adjacent property
  2. 2 Whether a mutually enforceable building scheme exists over the estate as shown in the 1908 plan
  3. 3 Whether the area subject to the scheme is sufficiently defined

Ratio Decidendi

There are realistic prospects that the Defendants can establish at trial the existence of a mutually enforceable building scheme over the estate as shown in the 1908 plan, and that the restrictive covenants in the 1909 and 1910 conveyances are enforceable between owners of land within those boundaries. The existence of subsequent estate plans and minor discrepancies do not, as a matter of law or fact, preclude enforceability or sufficiently undermine the definition of the area subject to the scheme.

Court Disposition

Application for summary judgment dismissed

Orders

  • Birdlip Limited's application for a declaration that the restrictive covenants are not enforceable by the Hunters is dismissed.
  • No summary judgment granted; matter to proceed to trial if necessary.