Jackson Way Properties Ltd. -v- Smith & ors [2018] IEHC 115 (02 February 2018)

Jackson Way Properties Ltd. -v- Smith & ors [2018] IEHC 115 (02 February 2018)

The benefit of the restrictive covenant created by the 1947 deed and modified by the 1962 deed is not annexed, either expressly or impliedly, to any land, and is not enforceable by the Smiths. The covenant fails to identify the land to be benefited with sufficient certainty, and neither the deed nor admissible extrinsic evidence establishes annexation. Statutory provisions do not cure this deficiency. Accordingly, the Smiths have no entitlement to enforce the covenant.

Citation
[2018] IEHC 115
Parties
Plaintiff: Jackson Way Properties Limited; Defendant: Thomas Kevin Smith; Defendant: Mairead Smith; Notice Party: Dún Laoghaire Rathdown County Council
Jurisdiction
Ireland
Judgment Date
02 February 2018
Procedural Posture
Plenary Action / Final Judgment
Outcome
Plaintiff's claim succeeds; declarations granted that the Smiths have no entitlement to enforce the covenant; Smiths' counterclaim dismissed.
Legal Topics
Restrictive Covenants, Annexation of Benefit, Running of Covenants, Land Registration, Modification/discharge of Covenants
Property Law Equity Restrictive Covenants Annexation of Benefit Running of Covenants Land Registration Modification/discharge of Covenants

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Parties

Jackson Way Properties Limited

Plaintiff

Thomas Kevin Smith

Defendant

Mairead Smith

Defendant

Dún Laoghaire Rathdown County Council

Notice Party

Procedural Posture

Plenary Action / Final Judgment

Legal Issues

  1. 1 Whether the benefit of a restrictive covenant created in 1947 is annexed to any land and enforceable by the Smiths
  2. 2 Whether the covenant is void for uncertainty
  3. 3 Whether the covenant can be discharged or modified under s. 50 of the Land and Conveyancing Reform Act 2009

Ratio Decidendi

The benefit of the restrictive covenant created by the 1947 deed and modified by the 1962 deed is not annexed, either expressly or impliedly, to any land, and is not enforceable by the Smiths. The covenant fails to identify the land to be benefited with sufficient certainty, and neither the deed nor admissible extrinsic evidence establishes annexation. Statutory provisions do not cure this deficiency. Accordingly, the Smiths have no entitlement to enforce the covenant.

Court Disposition

Plaintiff's claim succeeds; declarations granted that the Smiths have no entitlement to enforce the covenant; Smiths' counterclaim dismissed.

Orders

  • Declaration that the benefit of the restrictive covenant is not annexed to any land and is not enforceable by the Smiths.
  • Smiths' counterclaim for declaration of validity and benefit dismissed.