ON APPEAL FROM High Court of Justice, Chancery Division
His Honour Judge Kaye QC
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE AIKENS
SIR STEPHEN SEDLEY
| Rees & Anr
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Mr Jonathan Small QC and Mr Nathaniel Duckworth (instructed by Charles Hill Hubbard) for the Respondent
Hearing dates : 7 July 2011
Crown Copyright ©
The Chancellor :
"The Vendor hereby covenants with the Purchasers and their successors in title in manner following, that is to say …
(ii) for the benefit of the property hereby conveyed, or the part thereof for the time being remaining unsold and every part thereof
(a) not without the consent of the purchasers in writing to use the land which the vendor now owns to the north of the property hereby conveyed, and coloured green on the said Plan B, for any other purpose than that of grass land or grazing nor to erect or place thereon any building or movable structure without the consent of the purchasers
The land coloured green on Plan B is a meadow lying between Farne House to the south and Birdham Pool, a coastal inlet to the north. The covenants contained in clause 6(ii) were duly registered in the Land Charges Registry as land charges class D(ii) on 20th November 1957 against the name of the vendor, Kathleen Joan Freeman. By means of three conveyances on sale dated 15th October 1980, 23rd July 1985 and 31st March 1987 Farne Court was conveyed to the appellants, Mr and Mrs Rees. In each of those conveyances the benefit of the covenant contained in clause 6(ii) of the 1957 Conveyance was assigned by the respective vendors to the respective purchasers. On 23rd June 2003 Mr and Mrs Rees were registered as the proprietors of Farne Court with title absolute together with the rights granted by the 1957 Conveyance.
"…on the wording of this covenant…since the property which they now own was indeed sold off subsequent to the 1957 conveyance, albeit that it was the whole of the land that was sold, the covenant was and is in consequence no longer enforceable."
Mr and Mrs Rees now appeal with the permission of Etherton LJ.
"The position then is that Court Barn is vested in the defendant and Farne House is now vested in the claimants. Neither property, although carved out of one single property previously vested in Kathleen Freeman, has been further subsequently subdivided or sold off, other than, in the case of Farne House, by the sale of 15th October 1980 and subsequent transactions."
(1) the words at the end of clause 6(ii) "the part thereof for the time being remaining unsold" are inconsistent with the words which follow "every part thereof" and should be corrected as a matter of construction;
(2) if the inconsistency cannot be corrected by a process of construction then there should be rectification;
(3) if all else fails then the reference to "successors in title" justifies a construction which extends the benefit of the restrictive covenant to successors in title to the whole of Farne House.
The judge then referred to the argument of counsel for Mr Peters and to the well known decisions in Marquess of Zetland v Driver Ch.1; Crest Nicholson Residential (South) Ltd v McAllister  1 WLR 2409 and Federated Homes Ltd v Mill Lodge Properties Ltd  1 WLR 594.
"…it is up to the parties whether they wish to limit the scope of the restrictive covenant. The only question is a question of construction of the relevant clause as to whether they have succeeded in limiting it or not. Secondly, the words in clause 6(ii) of the 1957 conveyance "the part thereof for the time being remaining unsold" are, in my judgment, apposite to limit the scope of the restrictive covenant to benefit so much (in the case of the 1957 conveyance) of the property conveyed as was not sold off, for example, to a stranger. Once sold off the covenants would no longer bite, but otherwise it would continue to apply so long as an unsold part of the land was retained. But if there was a gift of the whole or a part or a settlement or a bequest – in other words, something which did not amount to a sale as ordinarily understood – then the covenants would continue to apply. But once there was a sale, so far as the property sold was concerned, the covenant would not be enforceable. It seems to me that what the parties were attempting to do, at least in 1957, was to put some temporal limit or scope on the purpose of the covenant to preserve the amenity of the view over the meadow, certainly for the purchasers and no doubt for the benefit of the trust or the persons who might occupy the house in right of the trust, but once, for example, the land was sold off, either as a whole or in parts, to a complete stranger then the covenants would not continue to bite and would no longer be enforceable." 
"But, as it seems to me, the plain purpose of the covenant, and the plain purpose of clause 6(ii), was to annex the covenant to, first of all, the property conveyed; secondly, to any part of the property for the time being remaining unsold, the words "for the time being" meaning exactly as held by Chadwick LJ in the Crest case as "from time to time"; and, thirdly, and every part thereof, the word "thereof" meaning and referring to every part of the property thereby conveyed or thereby remaining unsold as the case may be." 
(1) Whether on the true construction of clause 6(ii) of the 1957 Conveyance the benefit of the covenants therein contained continued and was annexed to Farne House notwithstanding its sale by the original purchasers in 1980; and if so
(2) Whether the Charges Register of the registered title to Court Barn should be rectified by the addition of such covenants as an incumbrance.
"…the draftsman of this conveyance and the parties, as I have said, did intend some temporal and class restriction on clause 6 (ii). In the latter case, by "class" I mean the class of persons who might be capable of enforcing the benefit of the covenant, namely those persons who were not persons deriving title under a sale such as, in this case, the claimants."
"1 In this Schedule, references to rectification, in relation to alteration of the register, are to alteration which–
(a) involves the correction of a mistake, and
(b) prejudicially affects the title of a registered proprietor.
2 (1) The court may make an order for alteration of the register for the purpose of–
(a) correcting a mistake,
3 (1) This paragraph applies to the power under paragraph 2, so far as relating to rectification.
(2) If alteration affects the title of the proprietor of a registered estate in land, no order may be made under paragraph 2 without the proprietor´s consent in relation to land in his possession unless–
(b) it would for any other reason be unjust for the alteration not to be made.
(3) If in any proceedings the court has power to make an order under paragraph 2, it must do so, unless there are exceptional circumstances which justify its not doing so.
"I am fully aware of the covenant regarding my land…"
(1) on the proper construction of the 1957 Conveyance and in the events which have happened Mr and Mrs Rees are entitled to the benefit of the covenant contained in clause 6(ii) thereof; and
(2) the Charges Register of Title WSX155728 should be altered pursuant to schedule 4 to the Land Registration Act 2002 so as to add a reference to that covenant.
Lord Justice Aikens
Sir Stephen Sedley
"I think it is the duty of a judge to ascertain the construction of the instrument before him, and not to refer to the construction put by another judge upon an instrument perhaps similar but not the same. The only result of referring to authorities for that purpose is confusion and error, in this way, that if you look at a similar instrument and say that a certain construction was put upon it, and that it differs only to such a slight degree from the document before you that you do not think the difference sufficient to alter the construction, you miss the real point of the case, which is to ascertain the meaning of the instrument before you."
The Master of the Rolls went on to point out that it was possible if one construed documents by dint of similarity eventually to find a document "which no human being would think of construing in the same manner, but which has by this process come to be construed in the same manner" as an earlier one.