Bulletins | March 27, 2018

Dear Claire – Spring 2018

Perplexed by property law? Relax, Solicitor Claire Haynes is here to answer your most pressing questions…

Q:  I am a developer. I am investigating the purchase of a site for residential development. There is currently one house on the plot, but I am hoping to construct a small block consisting of three or four residential flats in its place. My initial investigations have uncovered a covenant on the title of a property which states that “no buildings are to be erected on any part of the property other than a single private dwellinghouse”. Does this mean that I am unable to construct a block of flats or even more than one house?

A:  The meaning of the term “dwelling house” or “dwelllinghouse” may seem obvious, but caselaw and legislation attributes no fixed meaning to the phrase. As covenants of this nature are reasonably common and it is often difficult to interpret what the covenants mean, there is a lot of caselaw on this area. Over the years the courts have considered the meaning of “dwelling house”, “private dwelling house” and “single private dwelling house”.

One element which is consistent in the cases is that the particular covenant must be considered in context, so you must look at the purpose of the covenant affecting the plot. Was it created to prevent the building of flats on the plot and to limit development to houses? If so, your scheme is unlikely to be within the development permitted by the covenant.

There are cases where the term “dwellinghouse” has been found to include a self-contained building that comprises flats, often in the context of interpreting a statute. A 2008 case ruled that the term “dwellinghouse” in a piece of planning legislation includes a building that consists wholly of flats.

On the face of it, the words “single” and “private” suggests the property should not be used in multiple occupation. However the meaning of terms such as these will always come down to the full wording of the covenant and the context in which it is given.

In 2004 a case went to the Court of Appeal for a ruling on the meaning of a covenant not to carry on, “in any building or buildings erected thereon and any trade or business whatsoever and not to use or permit or suffer any buildings erected thereon or any part thereof to be used for any other purpose than as a private dwelling house either with or without garages and other necessary outbuildings”.

The Court looked at three factors to make its decision:

  • the literal meaning of the words and context in which they appear. The covenant envisaged the presence of more than one building and so the expression “a” did not imply singularity in this context;
  • the factual matrix. In the 2004 case, the Court decided this was unclear and did not assist in reaching any conclusion other than that to which the actual words of the covenant led; and
  • authorities binding on the Court. In a 2002 High Court case, a covenant which restricted use to “a private dwelling house” meant restriction to a single dwelling house. The Court explained that “a” tended to carry with it the concept of singularity. The decision in the 2004 case was distinguished from the 2002 case. If a covenant referred to “any part” of a plot or to “any buildings thereon” this would point towards the covenant permitting more than one dwelling house.

Unfortunately without the inclusion of a definition of “a single private dwelling house” in the deed which created the covenant, its meaning will not be absolutely clear. As you can see from the caselaw examples I have given, interpretation of the meaning of a covenant of this nature could go either way depending on the circumstances.

If the covenant is old, the beneficiaries are untraceable and property does not form part of a building scheme, title indemnity insurance may be an option. Another option would be to apply to the Lands Tribunal to discharge or modify the covenant. This can be a lengthy process and there is no guarantee of success. Consideration of the full wording of the covenant and more detailed research of the caselaw may prove helpful to enable you to decide on a way forward with the site.