The High Court ruled that a restrictive covenant in a 1963 conveyance did not affect land held by Tudor Homes Limited, following a dispute over the meaning of the deed. The court found the deed ambiguous and relied on later transactions and other evidence in interpreting it.
The case came before the court by special summons to construe the conveyance, known as the Kitching deed. Its fifth schedule restricted building for 50 years on land retained by the vendor lying east of the land conveyed. Among other conditions, no house could be built on a site smaller than one acre, and each site had to have at least 150 feet of frontage to Lehaunstown Lane.
Rhona O’Shea, a successor in title to the purchaser under the deed, argued that the restriction extended to Tudor Homes’ land. The company denied that it did. The judgment records that a related company, Yeoman Investment Holdings Limited, was added as a defendant by consent because it held the land at issue and had undertaken to transfer its interest to Tudor Homes.
Tudor Homes said its development was north of the land conveyed under the deed and outside the covenant’s reach. Its submissions referred to the land’s distance from O’Shea’s property, intervening features including Lehaunstown Lane and the Druid Valley, later deeds and buildings that did not conform to the covenant’s restrictions. The company also said it had received legal advice in 1974 that the covenant did not bind its land. The judgment records that planning permission for a 222-unit development was confirmed in 2003 and that an estimated €12,970,701 had been spent by the time of the dispute.
Justice MacMenamin concluded that the deed was “ambiguous and loosely drafted”. He considered the wording of the schedule alongside subsequent leases, later property transactions, the parties’ conduct and the geography of the area. He accepted the developer’s interpretation, finding that the covenant’s purpose was to protect the adjoining area and that it had no effect on the more distant Tudor Homes land.
The court rejected allegations that the developer lacked candour or acted without good faith in providing title documents, describing those allegations as unwarranted and without foundation. It did not decide whether the covenant would otherwise bind a successor in title, saying that issue was unnecessary in light of its findings.
The court answered “no” to the question of whether Tudor Homes’ land was affected by the covenant. The judge said he would hear further submissions on the form of the order and costs; the judgment does not record a final order or costs decision.