Faculty of Law, The University of the West Indies, Mona Campus

LAW 2220 – REAL PROPERTY II

André Sheckleford
(andre.sheckleford02@uwimona.edu.jm)
Worksheet 4
Freehold Covenants

Objectives
By the end of this topic, students should be able to:
 demonstrate an understanding of the operation of freehold covenants;
 demonstrate an understanding of the circumstances in which equity intervenes so as to
burden successors-in-title to the original covenantee with the obligation of a freehold
covenant;
 identify what persons are bound to carry out the obligations of the freehold covenants;
 identify and explain the methods which may be used to have successors-in-title bound by
positive covenants;
 identify the circumstances in which common law will allow the successors-in-title of the
original covenantee to have the benefit of a freehold covenant;
 demonstrate an understanding of the circumstances in which the benefit of a freehold
covenant passes in equity;
 demonstrate an understanding of the various mechanisms for the discharge and
modification of freehold covenants.
I. Introduction
Freehold covenants are contractual provisions, set out in a deed (“under seal”), where two parties
agree to carry out certain acts or refrain from the carrying out of certain acts. The person making
the promise (and therefore under the burden of the covenant) is the covenantor, while the
recipient of the promise (and therefore benefitting from the covenant) is the covenantee.
Whereas the original covenantor and covenantee are in privity of contract with one another, their
successors-in-title will not be. The question then arises as to how these covenants can be for the
benefit of, or to the burden of the successors in title. For this to happen, both the benefit and the
burden of the covenant must run with the respective properties. This ability of such covenants to
run with the land describes the proprietary nature of freehold covenants.

Reading
SJ Bailey, 'The Benefit of Restrictive Covenants' (1938) 6 CLJ 339-366 (on OurVLE)
Owusu S, Land Law, Routledge-Cavendish 2007, Ch. 11
Kodilinye G, Commonwealth Caribbean Property Law, 4th ed (Routledge 2014), Ch. 9

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II. The burden of the covenant (who can be sued)?

The original covenantor

Firstly, as a matter of contract law, the original covenantor is bound by any covenant into which
he enters, so long as they are valid contractual terms. The obligations under the covenant, in
theory, continue even after he has parted with his interest. However, in practice, there may not be
much benefit in pursuing him regarding those obligations as the person seeking the benefit of the
covenant will likely be seeking compliance, which the original covenantor has no obligation to
secure, or damages; however such damages would be merely nominal.

Successors-in-title to the original covenantor

Common law will not, in any circumstances, have the burden of the covenant run between
freeholders. This is where equity intervenes.
Tulk v Moxhay [1843-60] All ER Rep 9
Note that the burden running in equity only has particular consequences, such as whom the
covenant is enforceable against (issues of notice for unregistered land, and issues of registration
for registered land).
The Tulk v Moxhay principle has been “fleshed-out” in subsequent cases:
The covenant must be negative in substance
Put simply, positive covenants cannot run in equity whereas negative (restrictive) ones can.
Austerberry v Oldham Corporation (1885) 29 Ch D 750, per Cotton LJ at 773:

[U]ndoubtedly, where there is a restrictive covenant, the burden and benefit of which
do not run at law, Courts of Equity restrain anyone who takes the property with notice
of that covenant from using it in a way inconsistent with the covenant. But here the
covenant which is attempted to be insisted upon on this appeal is a covenant to lay out
money in doing certain work upon this land; and, that being so…that is not a covenant
which a Court of Equity will enforce: it will not enforce a covenant not running at law
when it is sought to enforce that covenant in such a way as to require the successors in
title of the covenantor, to spend money, and in that way to undertake a burden upon
themselves.

Rhone v Stephens [1994] 2 AC 310, per Lord Templeman at 318:

Equity cannot compel an owner to comply with a positive covenant entered into by his
predecessors in title without flatly contradicting the common law rule that a person
cannot be made liable upon a contract unless he was a party to it. Enforcement of a
positive covenant lies in contract; a positive covenant compels an owner to exercise
his rights. Enforcement of a negative covenant lies in property; a negative covenant
deprives the owner of a right over property. As Lord Cottenham L.C. said in Tulk
v. Moxhay, at p. 778: "if an equity is attached to the property by the owner, no one

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 purchasing with notice of that equity can stand in a different situation from the party
from whom he purchased."

and further at page 321:

For over 100 years it has been clear and accepted law that equity will enforce negative
covenants against freehold land but has no power to enforce positive covenants
against successors in title of the land. To enforce a positive covenant would be to
enforce a personal obligation against a person who has not covenanted. To enforce
negative covenants is only to treat the land as subject to a restriction.

The distinction in treatment between positive and negative covenants has not been without
criticism. See page 321 et seq of Lord Templeman’s opinion in Rhone v Stephens for examples
of such discussions.
Note that the enquiry is into whether or not the covenant is negative in substance, rather than a
focus purely on its formulation.
The covenant must touch and concern land
This has the same meaning as when we considered leasehold covenants on earlier in the
semester. Note the quote from Lord Oliver of page 9 of worksheet 2 in Swift Investments v.
Combined English Stores [1989] AC 632 (HL).
The covenant must be for the benefit of the land of the original covenantee
The requirement here is that at the time the covenant was entered into the original covenantee
had land to benefit from the covenant, that land was capable of benefitting from the covenant and
that the burden was entered into to benefit that land.
London County Council v Allen [1914] 3 KB 642
A situation in which this requirement may not be met is where the original covenantee (A) sold a
part of his land to the original covenantor (B), however before the covenant is entered into he
sells the retained part of the land to a third person (X).
There must be an intention for the covenant to run with the land
This further requirement is that there must be an intention on the part of the original covenantor
and original covenantee that the ‘burden’ of the covenant was to be enforceable against the
possessor of the land, whomsoever that possessor may be. As stated by the Farrell J in Rogers v
Hosegood [1900] 2 Ch. 388 at 404:
That a court of equity, however, would not regard [an objection that the party against
whom the covenant is being sought to be enforced was not privy to the covenant] as
defeating the intention of the parties to the covenant is clear; and, therefore, when the
covenant was clearly made for the benefit of certain land with a person who in the
contemplation of such a court was the true owner of it, it would be regarded as
annexed to and running with that land, just as it would have been at law but for the
technical difficulty.

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For an example of wording which will reflect such an intention, see the provision of the
instrument of transfer reproduced at paragraph 3 of the Board’s judgment in Half Moon Bay Ltd
v Crown Eagle Hotels Ltd (2002) 60 WIR 330.

The burden of positive covenants

As positive covenants cannot run under Tulk, different mechanisms have been formulated:
Grant of a long lease: instead of a conveyance of a fee simple, a long lease may be granted
containing positive covenants. Successive assignees of both the lease and the reversion would
then have the burden and the benefits of such covenants under the rule in Spencer’s case.
Chain of indemnity: chains of indemnity are somewhat cumbersome constructs whereby the
original covenantor, in his conveyance to a subsequent purchaser, includes in this conveyance a
term that the purchaser will indemnify him for any claims of breach of covenant against him (this
is a usual clause). The owner of the land to benefit may still therefore sue the original owner,
however the original owner can then engage the indemnity clause and sue his purchaser. If that
purchaser has since sold, and has included an indemnity clause in his conveyance, he may sue his
purchaser, and so “the chain” goes on.
Theoretically these may go on indefinitely, however in practice it will come to an end if the
original covenantor is no longer in the picture, or alternatively it will lose any efficacy of the
chain is broken (in that the threat of suit to the present purchaser is gone, and as such he need not
abide by the covenant).
Mutual benefit and burden (the rule in Halsall v Brizzell): where, in a conveyance, a
purchaser is receiving some continued benefit (beyond the enjoyment of the property which he is
conveyed, of course), and there is some positive obligation related to that benefit which the
purchaser covenants to do, successors to that purchaser may be bound by the positive covenant.
Halsall v Brizell [1957] Ch. 169, per Upjohn J at 182:

[After stating three reasons why, prima facie, the positive covenants would not bind
the successors to the covenantee] But it is conceded that it is ancient law that a man
cannot take benefit under a deed without subscribing to the obligations thereunder. If
authority is required for that proposition, I need but refer to one sentence during the
argument in Elliston v. Reacher, where Lord Cozens-Hardy M.R. observed: "It is laid
down in Co. Litt. 230b, that a man who takes the benefit of a deed is bound by a
condition contained in it, though he does not execute it." If the defendants did not
desire to take the benefit of this deed, for the reasons I have given, they could not be
under any liability to pay the obligations thereunder. But, of course, they do desire to
take the benefit of this deed. They have no right to use the sewers which are vested in
the plaintiffs, and I cannot see that they have any right, apart from the deed, to use the
roads of the park which lead to their particular house….

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 Rhone v Stephens [1994] 2 AC 310, per Lord Templeman at 322:

[After endorsing Halsall v Brizell] It does not follow that any condition can be
rendered enforceable by attaching it to a right nor does it follow that every burden
imposed by a conveyance may be enforced by depriving the covenantor's successor in
title of every benefit which he enjoyed thereunder. The condition must be relevant to
the exercise of the right. In Halsall v Brizell there were reciprocal benefits and
burdens enjoyed by the users of the roads and sewers.

Question: why did the House of Lords not apply the rule in Halsall in Rhone v
Stephens?

Wilkinson and others v Kerdene Ltd [2013] EWCA Civ 44

III. The benefit of the covenant (who can sue)?
The successor-in-title to the original covenantee has the right to the benefit of the covenant at
both common law and equity. As we shall see however, the common law rules are rarely
applicable in practice.

At common law
Though the burden of the covenant cannot pass at common law, the benefit is capable of so
doing by a centuries old rule which allows successors to the original covenantee to sue the
original covenantor on a freehold covenant, be it negative or positive in nature.
As stated by Farrell J in Rogers v Hosegood [1900] 2 Ch. 388 at 394:

[T]he benefit of the covenants runs at law with the land . . . the covenants are annexed
to the land and pass with it in much the same way as title deeds. . . Thus the right to
sue on such covenants passes [with the covenantee's estate in the land] to the heir and
not to the executors; the assignee of such covenants could sue at law in his own name
in the days when the assignee of no other chose in action could do.

At common law the successor to the original covenantee to sue the original covenantor where:
(a) the covenant touches and concerns land, and
(b) the successor to the original covenantee has the legal estate in the land to be benefitted
from the covenant.
The common law approach is however not applicable where:
(a) the original covenantor has alienated the burdened land;
(b) the successor to the original covenantee only has a part of the land to benefit;
(c) the successor to the original covenantee is an owner in equity only.

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 Other modes
There are three general categories for the modes by which the benefit of the covenant may run:
annexation, assignment and by way of a scheme of development.
Annexation
An enquiry into whether the benefit of the covenant has been attached to land involves an
analysis of the conveyance involving the original parties. There are two types of annexation:
express annexation and statutory annexation.
Express annexation: here equity considers the covenant annexed to the land if the instrument in
the original conveyance evinces a manifest expression that the covenant was made for the benefit
of the land. It is essential that (i) the benefitting land is identified and (ii) the benefit is for the
land (and not a personal benefit). The classic formula is approximate to the following:
“…with intent that the covenant may enure to the benefit of vendors, their heirs and
successors and others claiming under them to all or any of their lands adjoining...”

See Rogers v Hosegood [1900] 2 Ch. 388.

Failure to meet the formula:
Failure to identify the land to benefit is fatal:
Renals v Cowlishaw (1879) 11 Ch.D. 866
Lamb v Midac Equipment Ltd [JM 1998 PC 1]
If, as a matter of construction, the land in question may be identified, this will suffice:
Drake v Grey [1936] Ch. 451
The benefit does not necessarily pass to a very large parcel of land:
Re Ballard’s Conveyance [1937] Ch. 473
However the benefit may enure to sub-divided lots:
Federated Homes Ltd v Mill Lodge Properties Ltd [1980] 1 All ER 371
Statutory annexation: two types of provisions arise for consideration here – those based on
section 58(1) of the English Conveyancing and Law of Property Act 1881 and those based on
section 78(1) of the English Law of Property Act 1925. Statutes based on the former may be
found in The Bahamas, Grenada and Jamaica (s. 61), whereas statutes based on the latter may be
found in Barbados, Belize, Dominica, St. Kitts & Nevis and Trinidad & Tobago.

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Those based on section 58(1) of the English Conveyancing and Law of Property Act:
The provision reads:

A covenant relating to land of inheritance, or devolving on the heir as special

occupant, shall be deemed to be made with the covenantee, his heirs and assigns, and
shall have effect as if heirs and assigns were expressed.

The question has arisen as to whether this may amount to automatic annexation upon a
conveyance. The answer to this appears to be “no”, as the provision makes no reference
to the land to be benefitted and as such faces the same issue as addressed by Renals v
Cowlishaw:
J Sainsbury plc and another v Enfield London Borough Council [1989] 2 All ER
817
Those based on section 78(1) of the English Law of Property Act 1925:
The provision reads:
A covenant relating to any land of the covenantee shall be deemed to be made with
the covenantee and his successors in title and the persons deriving title under him or
them, and shall have effect as if such successors and other persons were expressed.

For the purposes of this subsection in connexion with covenants restrictive of the user
of land “successors in title” shall be deemed to include the owners and occupiers for
the time being of the land of the covenantee intended to be benefited.

In querying whether this provision results in automatic annexation it may be noted that,
unlike the provision it replaces, section 78 makes mention of the land to be benefitted in
the definition of “successor in title”. This provision has been held to result in automatic
annexation of restrictive covenants upon a conveyance:
Federated Homes Ltd v Mill Lodge Properties Ltd [1980] 1 All ER 371
Implied annexation: there is a question of whether, in all the circumstances, if it is obvious that
the covenant was meant to be annexed to the land, and that it would be unjust to ignore it, if this
would result in annexation.
Marten v Flight Refuelling Ltd [1962] Ch. 115
However the Privy Council appears to have ruled out the possibility of implied annexation:
Jamaica Mutual Life Assurance Society v Hillsborough Ltd [1989] 1 WLR 1101
Express Assignment
Even if the covenant has not been annexed to the land, an assignee of the land to benefit may still
enforce the covenant if it has been assigned to him. We therefore look for the passing of the
benefit in the conveyance to the successor/assignee of the covenantee.

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For an assignment of the benefit to be effective the land to benefit must be clearly identified, and
the assignment and the conveyance must be contemporaneous: Miles v Easter [1933] Ch. 611,
esp 631 – 631.
Are a chain of assignments needed or is it that, if there is one an express assignment, no further
assignments are necessary?
Re Pinewood Estate [1958] Ch 280
c/f Renals v Cowlishaw (1879) 11 Ch.D. 866 and Rogers v Hosegood [1900] 2 Ch. 388
Building Schemes
Equity has developed special rules whereby if a building scheme/scheme of development is
found, reciprocal covenants may be enforced by the purchasers of the lots in the scheme against
one another. A building scheme exists where there is a “community of interest and reciprocity of
obligation”. The classic requirements are found in the decision of Parker J in Elliston v Reacher
[1908] 2 Ch 374 at 384-5 (approved by the Court of Appeal at [1908] 2 Ch 665):
(1) the scheme applies to a defined area;
(2) the owners derive their title from a common vendor;
(3) the vendor sold the lots subject to restrictions intended to be imposed on all lots, this
being consistent with some general scheme of development (sale in lots);
(4) the vendor intended that all lots have the benefit of the covenants (common benefit);
(5) the original purchasers purchased on the understanding that the restriction imposed would
benefit all the other lots in the scheme (reciprocity).
Reid v Bickerstaff [1909] 2 Ch. 305 per Buckley LJ at 323 (cited with approval by the Board
in Jamaica Mutual Life Assurance Society v Hillsborough Ltd [1989] 1 WLR 1101):

There can be no building scheme unless two conditions are satisfied, namely, first,
that defined lands constituting the estate to which the scheme relates shall be
identified, and, secondly, that the nature and particulars of the scheme shall be
sufficiently disclosed for the purchaser to have been informed that his restrictive
covenants are imposed upon him for the benefit of other purchasers of plots within
that defined estate with the reciprocal advantage that he shall as against such other
purchasers be entitled to the benefit of such restrictive covenants as are in turn to be
imposed upon them. Compliance with the first condition identifies the class of persons
as between whom reciprocity of obligation is to exist. Compliance with the second
discloses the nature of the obligations which are to be mutually enforceable. There
must be as between the several purchasers community of interest and reciprocity of
obligation.

The geographical extent:

Elias (Emile) & Co Ltd v Pine Groves Ltd [1993] 1 WLR 305 (PC, T&T)

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Reciprocity:
Jamaica Mutual Life Assurance Society v Hillsborough Ltd [1989] 1 WLR 1101
To see some evidence which may assist in proving reciprocity, note the following at
1108:

Apart from the reference to three lot numbers in plan “A” there is nothing in either
instrument of transfer to suggest that the vendors were selling off a number of lots as
part of a scheme. Furthermore there is nothing in either instrument to suggest that the
purchaser had assumed an obligation to anyone other than the vendors or had acquired
the benefit of obligations incurred by other persons. There was no evidence as to the
circumstances surrounding the 1956 sales, whether, and if so how, they were
advertised, what, if any, representations were made by the vendors to the two
purchasers, whether or not the latter were each aware of the transaction into which the
other was entering. In the absence of any such extraneous evidence the terms of the
instruments of transfer alone fall far short of what is required to establish community
of interest or reciprocity of obligation between purchasers.

Elias (Emile) & Co Ltd v Pine Groves Ltd [1993] 1 WLR 305 (PC, T&T)
IV. Discharge and modification
The rules relating to the discharge and modification of restrictive covenants may be found at
common law and in statutory provisions (in Barbados and Jamaica).

Common law
The common law grounds are (1) a change in the character of the neighbourhood making it
pointless to enforce the covenant and (2) that the covenantee is seeking to enforce a covenant of
which he has disregarded prior breaches, and would justify a reasonable person in believing
future breaches wold be disregarded (a form of waiver/estoppel).
In relation to the latter note the following from Farwell J in Chatsworth Estates Company v
Fewell [1931] 1 Ch 224 at 231-2:
Now, as stated in many authorities, the principle upon which this equitable doctrine
rests is that the plaintiffs are not entitled to relief if it would be inequitable to the
defendant to grant it. In some of the cases it is said that the plaintiffs by their acts and
omissions have impliedly waived performance of the covenants. In other cases it is
said that the plaintiffs, having acquiesced in past breaches, cannot now enforce the
covenants. It is in all cases a question of degree. It is in many ways analogous to the
doctrine of estoppel, and I think it is a fair test to treat it in that way and ask, "Have
the plaintiffs by their acts and omissions represented to the defendant that the
covenants are no longer enforceable and that he is therefore entitled to use his house
as a guest house?"

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 The question is really this: What is it fair to say that the plaintiffs' acts and conduct
entitled the defendant to assume as to his use of [the property]? Could the defendant
reasonably say, "Having regard to the plaintiffs' acts and conduct they could not
properly object to my using [the property] as I do"?

The first mentioned common law ground is similar to the first statutory ground, which is
explored below.

Statutory grounds
The relevant grounds, in Jamaica, may be found in section 3(1) of the Restrictive Covenants
(Discharge and Modification) Act 1960 which provides:

A Judge in Chambers shall have power, from time to time on the application [of a
planning agency of a person interested in any freehold] by order wholly or partially to
discharge or modify any such restriction (subject or not to the payment by the
applicant of compensation to any person suffering loss in consequence of the order)
on being satisfied–

(a) that by reason of changes in the character of the property or the neighbourhood or
other circumstances of the case which the Judge may think material, the
restriction ought to be deemed obsolete; or

(b) that the continued existence of such restriction or the continued existence thereof
without modification would impede the reasonable user of the land for public or
private purposes without securing to any person practical benefits sufficient in
nature or extent to justify the continued existence of such restriction, or, as the
case may be, the continued existence thereof without modification; or

(c) that the persons of full age and capacity for the time being or from time to time
entitled to the benefit of the restriction whether in respect of estates in fee simple
or any lesser estates or interests in the property to which the benefit of the
restriction is annexed, have agreed, either expressly or by implication, by their
acts or omissions, to the same being discharged or modified; or

(d) that the proposed discharge or modification will not injure the persons entitled to
the benefit of the restriction

[proviso regarding compensation]

These will be referred to as:

(a) obsolescence,
(b) impediment of the reasonable user,
(c) agreement, and
(d) no injury.
Obsolescence

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To be successful on this ground, it should be established that there has been a change in character
of the neighbourhood and that this change has rendered the covenant obsolete. The test for
whether the covenant is obsolete may be in Re Truman, Hanbury, Buxton & Co Ltd's Application
[1956] 1 QB 261 where Romer LJ stated at 272:

It seems to me that if, as sometimes happens, the character of an estate as a whole or

of a particular part of it gradually changes, a time may come when the purpose to
which I have referred can no longer be achieved, for what was intended at first to be a
residential area has become, either through express or tacit waiver of the covenants,
substantially a commercial area. When that time does come, it may be said that the
covenants have become obsolete, because their original purpose can no longer be
served and, in my opinion, it is in that sense that the word "obsolete" is used in section
84 (1) (a).

The covenant is therefore obsolete if the purpose for which it was imposed can no longer be
achieved.
Determining the “neighbourhood” – the “estate agent test”:
Central Mining & Excavating Ltd v Croswell [JM 1993 CA 62]
Re 23 - 25 Seymour Ave [JM 2011 SC 109], [22] – [39]
Change from residential to commercial neighbourhood?
Stephenson v Liverant (1972) 18 WIR 323
Change from single family dwelling neighbourhood to multi-family dwelling neighbourhood?
Central Mining & Excavating Ltd v Croswell [JM 1993 CA 62] (see opinion of Downer
JA (majority) and the dissent of Wright JA)
Re 30 Dilsbury Avenue (Claim No. 2006 HCV 00856, 14 April 2011), esp. [15] – [19]
Re 23 - 25 Seymour Ave [JM 2011 SC 109], [40] – [57]

Question: can you discern a precise test from these decisions to determine when
covenants restricting subdivision/number of buildings ought to be modified? Note
especially the cases cited by the judges in their reasoning. Are the courts becoming
more liberal, as Kodilinye posits, or are they meandering around certain general
principles?
Impediment of reasonable user
Impediment has proven to be a particularly difficult ground to succeed on. To satisfy this ground,
it must be shown that (1) the covenant impedes the reasonable use of the land and (2) does not
secure any practical benefits to anyone.
Impeding “the reasonable user”:
The provision refers to the impediment of “the reasonable user”, unlike the English statute which
says “some reasonable user”. The effect of this difference was explored by the Board in

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Stannard v Issa [1987] AC 175 where it approved the dissent of Carey JA in the Jamaican Court
of Appeal where he stated:

[T]he restrictions must be shown to have sterilised the reasonable use of the land. Can
the present restrictions prevent the land being reasonably used for purposes the
covenants are guaranteed to preserve? Accordingly, I would suggest that it would not
be adequate to show that the proposed development might enhance the value of the
land for that would demonstrate the applicant's proposals are reasonable and the
restriction impedes that development.

For the Board, the plain words of the statute was that the restriction ought to impede all
reasonable uses of the land, rather than a specific reasonable use. The Board also rejected the
propositions form the majority that a liberal construction ought to be placed on the provision due
to housing demand and other socio-economic factors.
“Practical benefits”:
This includes concepts such as privacy and quietude (see Stannard v Issa [1987] AC 175 at 188)
as well as the exclusive character of a neighbourhood (see Re Constant Spring and Norbrook
Estate (1960) 3 WIR 270).
Agreement
For this ground to be satisfied, it must be shown that all persons entitled to benefit (all these
persons requiring the capacity to contract) have agreed to the discharge/modification. The
agreement may be express or implied.
Implied consent:
McMorris v Brown [1999] 1 AC 142 at 150
c/f Re 15 Norbrook Heights (Claim No. 2005 HCV 1767), 30 July 2009, 23 – 26
No Injury
Success on this ground requires establishing that, should the covenant be discharged, there will
be no injury to the persons entitled to benefit. It has been said that this ground exists so as to
address frivolous objections: see Russel LJ in Ridley v Taylor [1965] 2 All ER 51 at 58.
Note that because an objector to the discharge/modification consented does not mean that he is
unable to contest this ground (McMorris v Brown [1999] 1 AC 142 at 151).
The “injury” is not limited to pecuniary loss; it may include amenities such as privacy and
quietude:
Re 13 Gainsborough Ave [JM 1990 SC 049]
Re System Sales Ltd's Applications (1992) 43 WIR 19
The “thin edge of the wedge” argument has been raised in objection to reliance on this ground;
the idea is that, while the particular activity which the applicant is planning to embark upon may

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not cause any injury, harm may arise if others in the community are generally allowed to do
similar things.
It is for the applicant to show that the first relaxation of the covenant would not constitute a real
risk of precedent:
McMorris v Brown [1999] 1 AC 142
Tutorial Questions
1. Giselle originally owned the freeholds of Nos. 3, 4 and 5 Treasure Drive. Ten years ago,
Giselle sold No. 3 to Akheem, the conveyance containing the following covenant:

“The Purchaser, for himself and his successors-in-title, hereby covenants with the
Vendor and his successors-in-title that he (the Purchaser):
(i) will not at any time cause or permit the property hereby conveyed to be
used otherwise than as a single private dwelling house;
(ii) will not at any time cause or permit the property hereby conveyed to be
sub-divided.”

Subsequently Giselle sold No. 4 to Ruel and No. 5 to Danielle on the same terms. Like
many other owners of houses on Treasure Drive, Ruel demolished the house on his lot
and built a townhouse complex with sub-divided lots.

In January of this year Shanoi purchased No. 3 from Akheem, and recently obtained
planning permission to construct a townhouse complex. Danielle, having learnt of the
planning permission and Shanoi’s recent engagement of contractors, is seeking an
injunction to prevent Shanoi’s plans.

Advise Shanoi as to what defences may be available to her, and whether there are any
steps which she might profitably take.

2. The decision of Pusey J in Chin-Jen Hsia & Ord v Martin Lyn & Ors [2020] JMSC Civ 5
made the media rounds in Jamaica earlier this year (see for example here and here).
Critically analyse this decision on the bases of the three main elements of the discussion
of restrictive covenants above, namely:
i. whether the burden of the covenants in question ran with the land at 18 Upper
Montrose Road;
ii. whether the objectors could claim the benefit of the covenants;
iii. whether any of the tests for discharge/modification of the covenants had been
made out;
Additionally, consider the appropriateness of the remedies granted.

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