19 November 2009 by Louise Dawson

How annoying

The recent Court of Appeal case of Davies v Dennis and others [2009] dealt with the question of whether building an extension on a residential property fell foul of a restrictive covenant against annoyance or nuisance.

A restrictive covenant is a negative obligation that restricts the way in which a homeowner uses their land.

The defendant (“D”) purchased a property on an estate which was subject to a very common covenant not to do anything that “may be or become a nuisance or annoyance to the owners or occupiers for the time being of the estate or the neighbourhood”. (The annoyance covenant).

D had obtained planning permission for a three storey extension to the side of his house. Work began in May 2007, but was halted when legal proceedings were commenced by some of the residents on the estate who claimed that the extension would obscure their view of the Thames and therefore constituted a nuisance or annoyance.

D argued the commonly held view that the annoyance covenant only applied to activities on the property rather than the building itself or any extension of it, and secondly, that if there had been any annoyance, it was too trivial to amount to a breach of covenant.

The Court of Appeal agreed that the test was whether reasonable sensible people would, having regard to the ordinary use of houses for pleasurable enjoyment, be annoyed and aggrieved by the extension. This is an objective test that applies a common sense standard.

There was no doubt that the natural sense of the language used in the annoyance covenant could restrain the erection of potentially annoying buildings. In common sense terms, once built, the extension would be capable of continuing to annoy the neighbours.

From a developer’s point of view when assessing the suitability of a site for development, they must therefore have regard not only for the possible planning restrictions that may be in place but also to any title restrictions. The fact that D had obtained planning permission for his extension was held no weight in this case.

It will be interesting to see whether this case opens the floodgates to a whole host of claims to halt the development of properties on residential estates.

16 November 2009 by Lynne Burdon

This week I got a present

It all arose out of a mistake. Like so many mistakes somehow this problem had slipped through the net every place where it should have been picked up. We didn't spend too long looking at where to apportion blame. The solicitor worked with the most senior partners and eventually solutions were found. The rest is history - the case was won and everyone is delighted.

19 November 2009 by Louise Dawson

Let the Buyer Beware or Let the Seller Be Honest

The common law principle of caveat emptor, “let the buyer beware”, means that the onus is on a buyer to find out everything he wants or needs to know about a property before becoming committed to buying it i.e. prior to exchange of contracts.

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