Jackson Way Properties Ltd v Smith & Ors (Unapproved) [2023] IECA 185 (21 July 2023)

Jackson Way Properties Ltd v Smith & Ors (Unapproved) [2023] IECA 185 (21 July 2023)

The benefit of the 1947 restrictive covenant was not expressly or impliedly annexed to the dominant lands retained by the original covenantee, nor was there an effective assignment to the Smiths. The covenant was not enforceable by the Smiths as successors in title, and the burden did not bind the servient lands as of the operative date.

Citation
[2023] IECA 185
Parties
Plaintiff/respondent: Jackson Way Properties Limited; Defendants/appellants: Thomas Kevin Smith and Mairead Smith; Notice Party: Dun Laoghaire Rathdown County Council
Jurisdiction
Ireland
Judgment Date
21 July 2023
Procedural Posture
Appeal / Judgment
Outcome
Appeal dismissed
Legal Topics
Restrictive Covenants, Annexation, Assignment of Benefit, Rule in Tulk V Moxhay, Enforceability of Covenants, Land Registration
Property Law Land Law Equity Restrictive Covenants Annexation Assignment of Benefit Rule in Tulk V Moxhay Enforceability of Covenants +1 more

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Parties

Jackson Way Properties Limited

Plaintiff/respondent

Thomas Kevin Smith and Mairead Smith

Defendants/appellants

Dun Laoghaire Rathdown County Council

Notice Party

Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 Whether the benefit of a restrictive covenant created in 1947 was annexed to the dominant lands and enforceable by successors in title
  2. 2 Whether the covenant was personal to the original covenantee or ran with the land
  3. 3 Whether implied annexation or assignment occurred

Ratio Decidendi

The benefit of the 1947 restrictive covenant was not expressly or impliedly annexed to the dominant lands retained by the original covenantee, nor was there an effective assignment to the Smiths. The covenant was not enforceable by the Smiths as successors in title, and the burden did not bind the servient lands as of the operative date.

Court Disposition

Appeal dismissed

Orders

  • Declaration that the burden of the restrictive covenant was not annexed to the lands comprised in Folio 4940 as of the operative date
  • Declaration that the servient lands were not bound by or subject to the covenant as of the operative date