Housing Solicitors

A Buckinghamshire man has been freed from a restrictive covenant requiring him to make his property available to council tenants, following a recent appeal.

In March 2005, Mr Michael Cantrell bought a house in High Wycombe, at auction, from social landlord Home Group Ltd., which in turn had acquired the property from the Warden Housing Association. The Association had agreed to grant Wycombe District Council nomination rights in relation to six houses, including the one acquired by Mr Cantrell, in return for financial assistance from the Council.

The agreement signed by the Association had made reference to Section 609 of the 1985 Housing Act and stated that the rights granted under the contract to the Council would be enforceable ‘without limit of time’ against any subsequent owners of the properties.

Two years after Mr Cantrell became the new owner of the property, the Council sought to enforce its rights under its contract with the Association by taking him to court. The Council successfully argued that its rights under the agreement should continue to apply despite the change of ownership. Mr Cantrell appealed against the decision.

The Appeal Court held that it was an established legal principle that the burden of a positive covenant affecting freehold land did not bind subsequent purchasers. Whereas the original trial judge had stated that Section 609 of the 1985 Housing Act altered this general principle of law, the Appeal Court ruled that in the circumstances of this case Section 609 did not apply.

Mr Cantrell’s appeal was upheld and he did not have to make his property available for Council use.

The law relating to covenants over land can be quite complex, especially where social landlords are concerned. Anyone planning to acquire property from a social landlord would be well advised to seek advice before proceeding.