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#19245
NO MRTA: BRIT sportsmen lose first round attack on 1920’s title covenants at UNESCO heritage city 2021/06/26 18:18  
not legal advice & certainly not of Brit law.

Unlike good ole’ Ontario, England & Wales have no MRTA ( marketable record title act ) / “expiration by operation of law” as to restrictive covenants running with property titles.

But sometimes maybe that ain’t necessarily a bad idea.

AND our BRIT cousins CAN TRY instead to kill a covenant - instead of bribing its extinguishment – by applying successfully to a civil court. ( That’s judicially possible in Ontario & B.C ) Or to a Tribunal ; ( for Brits : it’s the "Upper Tribunal – Lands Chamber" ).

At a UNESCO 1987 World Heritage city, certain sports entrepreneurs lose - but have now announced appeal of - an English trial court decision.

That decision in late 2020 rejected the entrepreneurs' bid to void certain restrictive covenants ruled running with neighbourhood land titles ( by virtue of a so-called "Annexation Model") .

Created between 90 and 99 years ago in the course of divestment of an estate, those targetted ( negative restriction ) covenants have been confirmed binding in this UNESCO - designated World Heritage City.

And thus running with land titles of various disputants by way of having been bindingly & perpetually contracted by the challengers’ 1922 rootdeed predecessors as owed to and “annexed” to the portfolio’s later-sold residues.

The original “rootdeed” predecessors of the sports entrepreneurs, had as purchasers expressly covenanted to the original vendor and his “successors in title” of his remaining land holdings, to obey the promises now wanted broken or invalidated. ( so Tweren't just promised personally to the 1922 seller "in gross"/ personally )

Amongst the then-unsold “residue” to which that 1922 obligation is confirmed still owed and still running with title, are two of a group of the respondent ( later-purchasing ) line of nearby property owners interestingly described in this decision as “enforcers” . ( That’s : even though they did not themselves sue for enforcement . . . . or not yet . . . . )

The 1922 obligations imposed on the entrepreneurs’ predecessors & ruled still binding are to refrain from :

- “any trade or business which may be or grow to be a nuisance and annoyance or disturbance or otherwise prejudicially affect the adjoining premises or the neighbourhood shall at any time hereinafter be erected

and

that nothing shall be hereafter erected placed built or done . . . . . ..which may be or grow to be a nuisance and annoyance or disturbance or otherwise prejudicially affect the adjoining premises or the neighbourhood”

1 - BUT the entrepreneurs have initially lost also insisting that not only must the respondents' covenant-protected properties be ascertainable but EASILY ascertainable.

( Such ain’t necessarily easy IF those “to-be-created” parcels had not yet even been uniquely severed nor had yet obtained a unique title identifier. Nor where - unlike here - a grantor’s total holdings ( being attempted protected by permanent “annexation” of protections to run title ) - weren’t then or now identifiable without lotsa research ! )

Ironically, often not very much is “easily ascertainable” in this wacky world of restrictive covenant wars which – in overseas jurisdictions like Ontario & B.C - later strata or condo models were evolved. The Brits incidentally have not enthusiastically yet taken to condo-like models called commonholds. May like litigation in a sorta Bermuda Triangle.

But it is ruled that factually the residue was ascertainable to the universe & burden-accepters in 1922 even if there have been lotsa changes since then.

2 - The entrepreneurs also failed at trial with the argument that such 1922 transfer predated the benefit of certain 1925 Property Law changes ( “deeming” sloppy, lazy, incompetent language to be wider construed to include successors in land ownership instead of mere personal estate heirs ).

“No problem” said the trial judge : this particular 1922 restrictive covenant was expressly worded to protect later property titles owned by “... and successors in title” .

Possibly more to come . .

Footnote : The Annexation Model is the most problematic of 3 models for restrictive covenant creation as articulated authoritatively in a landmark English & Welsh decision more than 140 years ago. ( Soon got confirmed by House of Lords judicial committee & developed . . . )

That list of three has been restated periodically. Here it gets repeated as to the respective leading judicial precedents in 2020 in England & Wales.

At least one Canadian authority has opined the three apply to (common law ) Canada, although few may even grasp that or even are aware.

As an owner in a cross-covenanted Building Scheme myself, I know that 2 apply, & annexation-like phenomena can arguably be discernible or available in complex commercial property activity. .

( I also know that MRTA is on the brink of extinguishing my own cross-covenanted Building Scheme's covenants by its 40 year statutory limit. That's unless enough folks want to co-operate fairly to pay to correct & renew them without introducing the usual dangers of an owners association with some sorta legal platform.

But how many other non-condo / non-strata / non-co-op communities are unaware they face / have possibly already passed through, the same scenario ?
)
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