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 ? )

not legal advice,as usual.

The England & Wales Court of Appeal has overturned an earlier trial decision that had previously held certain HUNDRED YEAR OLD off-site property titles to enjoy ( unexpired ) annexed protective covenants.

English sports entrepreneurs in 2020 had pre-emptively sought to rule out potentially investor-frightening covenant objections. REMEMBER : That's in a jurisdiction without Ontario-style MRTA / "covenant expiry by operation of law".

Not directly / technically at stake in 2020 had been whether or not a stadium expansion plan would itself technically be in violation of those restrictive covenants or sale condition shown only on the Stadium's 1922 registered land transfer / purchase document . And on the title summary.

But HAD such prohibitions been clearly expressed and/or clearly targetted enough to mutually establish a contractual agreement including successfully annexed at all onto the lands of the original Grantor's retained lands ?

The sale conditions were literally worded only to protect "adjoining lands" and "the neighbourhood". What on Earth did that mean ? ( Remember that a Grantor's then-still-retained lands might not yet for decades eventually get severed; NOR thus have something like a "Parcel Summary" nor property-specific title status. What actually were the Grantor's exact retained lands at the date of disputed sale ? ( said not always easy to determine )

AND more chaos anyone ? : some of the decisions cite century-old paper documents long ago being destroyed by use or lizards or by whatever . . . )

At first instance in 2020 a judge held that the 1922 covenants ( ? protections ? ) had been successfully "annexed" onto the 1922 stadium Grantor's retained lands possibly or not adjoining or in the neighbourhood. Those apparently included two sets of respondent properties.

BUT in late 2021 - now reversed on appeal : . . .

Now held un-determinable enough in 1922 by the 1922 parties to be able to determine which & how & whatever the Grantor's then-retained lands could actually have been so-agreed in 1922.

Were the offsite references ascertainable enough in 1922 ? Remember that part of the ANNEXATION METHOD'S COMPLEXITY IS THAT OFTEN THE ( common ) GRANTOR'S RETAINED LANDS HAD NOT YET BEEN CREATED BY SUBDIVISION nor other severance or amalgamation etc . They would possibly not yet even exist as free-standing registered parcels. As the case here the covenant "asserters" later-issued titles do not show the alleged protections on their parcel titles.

NOT ENOUGH to bind the entrepreneurs' Stadium land title, has thus ruled the Appeal tribunal of Law Lords & Law Lady . AND the members ( obiter ) disagree on whether allegedly covenant-linked connections have to be merely "ascertainable" or even "EASILY ascertainable". ( Aren't Annexation disputes fun ? )

Thus on appeal the professional covenant-exorcists have "worked the same magic" as at another major appeal decision in 2016. But this time as to an Annexation dispute elsewhere rather than the 2015-16 Building Scheme dispute.

( One of the legal "exorcists" actually had been the principal architect of the challenge against claims under the disputed Building Scheme in 2016. )

More details may follow.

This provides an illustration of the Wild West to which modern condo or strata laws historically were getting addressed more than 50 years ago in Canada . . . . .

Where cross-covenanted communities still exist, this older Wild West arguably exists including in British Columbia & Ontario.

But only Ontario has an MRTA-type clock ticking silently & mercilessly to expire cross-covenants, no matter how much ignorance of that ticking . . . .

Cross reference :

In April 2022 what is arguably the SAME PRINCIPLE ( benefitting or covenant-protected property had better be "ascertainable" in the title environment - in fact "easily ascertainable" in Ontario ) is applied by an Ontario appeal panel :

see : “APPEAL PANEL SMITES JUDGE’S ORDER for LAND TITLES to VALIDATE UNENFORCEABLE/ BOTCHED COVENANT” https://ontario.cafcor.org/index.php?option=com_fireboard&Itemid=31&func=view&catid=2&id=19339#19339