This section is from the book "Dart's Treatise On The Law And Practice Relating To Vendors And Purchasers Of Real Estate", by J. Henry Dart . Also available from Amazon: A treatise on the law and practice relating to vendors and purchasers of real estate.
Principle upon which, acquiescence affects remedy.
In the case of land registered under the L. T. Acts, provision is made for the annexation of restrictive covenants and for the modification or discharge thereof by the Court on proof that such modification will be beneficial to the persons principally interested in the enforcement of such conditions (/).
Restrictive covenants relating to registered land.
It may be remarked, in this connection, (1) that the repeal of Lord Cairns' Act by the Judicature Act, 1883, has not affected the jurisdiction of the Court, under the Judicature Acts, to give damages alternatively to, or concurrently with, an injunction (g).
Effect of repeal of Lord Cairus' Act.
(J) (1822) 2 M. & K. 552.
(c) See Knight v. Simmonds, 1896, 2 Ch. 294 ; 65 L. J. Ch. 583 ; Hooper v. Bromet, (1904) 90L.T. 234; Broim v. Hose, (1895) 39 Sol. J. 504.
(d) Sayers v. Collier, (1884) 28 Ch. D. 103, 110; 54 L.J. Ch. 1.
(r) Laurence y. Horton, (1890) 62 L. T. R. 749; 59 L. J. Ch. 440.
(/) L. T. Act, 1875, s. 84, notes thereto in Cheny & Mar. on L. T. Acts ; see also Ground Rent Develop. Co. v. West, 1902, 1 Ch. 674 ; 71 L. J. Ch. 354.
Acting on the principle explained above, the Court has refused to interfere on behalf of the plaintiff by way of injunction in the following cases. Where the leases of an estate contained covenants by the lessees which were intended to be for the general benefit of the property (e.g., covenants to build upon an uniform plan), and the landlord released some of his tenants, the Court would not at his suit restrain a similar infringement of the covenants by the others (h). So, where on the sale of a building estate in lots, the purchasers entered into restrictive covenants with the vendor, and also inter se, and the vendor permitted, without interference, material breaches of the covenant to be committed by some of the purchasers, it was held that he could not enforce them against a purchaser who bought after the breaches had been committed (i). Where a lease of a house contained a covenant by the lessee to use it as a private dwelling-house only, with a proviso that, if any of the adjoining houses of the lessor should be turned into shops, the lessee might convert the demised premises to a similar use, and one of the adjoining houses was subsequently let to a photographer, who, without making any structural or architectural alterations in the building, used the front ground-floor room for the display and sale of photographs and albums, it was held that this was a conversion into a shop, and that the lessee was discharged from his covenant (k).
Instances of application of the principle.
(g) S. 5. Sayers v. Collier, sup. ; Krehl v. Burrell, (1878) 7 Ch. D. 551; (1879) 11 Ch. D. 146; Aynsley v. Glover, (1874) 18 Eq. 544 ; 43 L. J. Ch. 777 ; Smith v. 8., (1875) 20 Eq. 500 ; 44 L. J. Ch. 630 ; Martin v. Price, 1894, 1 Ch. 276; 63 L. J. Ch. 209; Shelfer v. City of London El. I. Co., 1895, 1 Ch. 287; 64 L. J. Ch. 216.
(h) Boper v. Williams, (1822) T. &
(i) Peek v. Matthew.', (1867) 3 Eq. 515.
(k) Wilkinson v. Rogers, (1864) 2 D. J. & S. 62 ; 9 L. J. N. S. Ch. 696 ; Kelsey v. Dodd, (1883) 52 L. J. Ch. 34, where Jessel, M. E., held that the remedy in damages was lost, as well as the right to an injunction.
Restrictive covenants of this kind, as being against common right, are in doubtful cases construed favourably to the covenantor. Thus, where the covenant was not to use the building "as a public-house for the sale of beer, wine, malt liquors, or spirits," it was held that the sale of beer by retail, under a licence not to be drunk on the premises, was not a breach of the covenant (/). So, a covenant not to engage in a specified trade, "or in any matter relating thereto," within a given district, does not prevent the covenantor from lending money to persons engaged in that trade within the prohibited limits; even though the mortgagor's only means of re-payment are out of the profits of the trade (m); nor does it prevent him from selling houses within the district for the purposes of the prohibited trade (n). But a covenant in a lease of cellars under a chapel, that they shall be used " as for wine-cellars only, and not for interment or burial" has been held to be broken by their user for the storage and sale of beer and spirits (o). So, a covenant not to erect buildings is broken by throwing out bow-windows (p).
In doubtful cases.
Acquiescence, or even participation, in trivial breaches of the covenant, will not of itself, in the absence of special circumstances, deprive a person, injured by a substantial breach, of his equitable remedy. Thus where each of several owners of houses in a row had entered into restrictive covenants with the owner of the building estate, as to building and planting trees upon their properties, an injunction was granted at the suit of the owner of one house restraining a breach of the building covenants, notwithstanding that the plaintiff and the other owners had committed breaches of the covenants as to planting, which had not been interfered with (q) ; and it was held that he might obtain relief without bringing the other owners before the Court (r); nor is the principle of acquiescence to be carried so far as to hold that a man who has permitted one infringement is bound to permit another (s) ; and in the case of a sub-purchaser of a part, it seems that the fact of his vendor having committed a breach of a restrictive stipulation before his purchase on another part, does not prevent the sub-purchaser from enforcing the stipulations (t) ; and the mere fact of not taking legal proceedings cannot in general be construed as acquiescence (u) : especially where the party, whose rights are invaded, is ignorant of the invasion (x). There may be in the same case acquiescence as to one breach and not as to another, as, e.g., where a purchaser bought lands upon which, four years previously, buildings had been erected in violation of a covenant of which the purchaser had notice, and then proceeded to erect further buildings in violation of the same covenant, a mandatory injunction to pull down the old buildings which had been acquiesced in for five years was refused, but as to the new buildings was granted (y). What degree of acquiescence will be a sufficient bar to relief, must, in each case, depend upon the nature of the breach; as, e.g., whether it is incurable, or merely temporary (s). In one case, where the covenant was not to use the house " as a public-house," and the breach was manifest, a delay of nearly six months did not deprive the vendor of his relief (a). But this case depended on special circumstances; and where there is a substantial breach, as, e.g., where, in contravention of the covenant, a noxious trade is being carried on, or a new building is being erected, or a structural or architectural alteration is being made in an existing building, a far shorter period will suffice to bar the title to relief (b).