This issue came up in the case of Churchill and Temple [2010] EWC3369 (Ch).
In this case part of the covenant indicated that the covenant bound the purchaser and successors in title. However, there was a further clause which indicated that the landowners with the burden of the covenant were not to make any structural alteration or addition to a permitted dwelling house without the written consent of the vendors or their surveyors.
The court decided that the reference to the vendors and their surveyors suggested that the covenant was a personal covenant, had a short term affect and related to the original vendor. In other words it was a covenant simply to ensure that the original vendor had some control over the original alterations. As the covenant was personal, rather than attached to the land, then as the person with the benefit of the covenant had died, the covenant was no longer enforceable.
It should be noted that the court will look at the wording of every covenant and that it cannot be said the courts will come to the same conclusion in every case. However, what it does mean is that where you are trying to challenge a covenant look carefully at the wording to see whether the covenant is worded in such a way as to make it personal in nature.
Call Jonathan Kenwright on 01242 285855.