A 1947 covenant restricting building on land in Carrickmines does not benefit any land, the High Court has ruled, leaving no one entitled to enforce it. The court found the deed did not identify land intended to benefit from the restriction, and later documents did not resolve that uncertainty.
The case was brought by Jackson Way Properties Limited against Thomas Kevin Smith and Mairead Smith. Dún Laoghaire Rathdown County Council was a notice party. Jackson Way sought declarations that the Smiths could not enforce the covenant and, alternatively, an order to discharge or modify it under section 50 of the Land and Conveyancing Law Reform Act 2009. Its claim for damages was not pursued at trial.
The covenant was made when Thomas Vincent Murphy transferred land in 1947 to John Hugh Wilson. Wilson promised not to erect buildings on the transferred land. The court noted that the covenant referred to Murphy, “his heirs, executors, administrators and assigns”, but did not state that its benefit attached to particular land. In 1962, Murphy, Wilson and the Bedford Company agreed to modify it to permit a dwelling house on part of the land.
The Smiths argued that the covenant’s benefit had passed to their Priorsland property and the small remaining plots of the original Folio DN1849 lands. They relied on the circumstances in which the covenant was created, Murphy’s 1962 affidavit describing its purpose as protecting his home and privacy, and provisions of the Conveyancing Act 1881.
Justice David Keane found that the deed did not expressly annex the benefit to land. Nor could the intended land be established by implication: the deed did not distinguish between a personal benefit to Murphy and a benefit to particular land, or identify which land was intended to benefit. The 1962 modification and affidavit did not cure that uncertainty. The court also rejected the argument that section 58 of the 1881 Act annexed the benefit by law, and expressed doubt about the alternative reliance on section 6.
The court concluded that no person was entitled to the covenant’s benefit and that it was not annexed to any land. Because of that conclusion, it did not decide the parties’ other arguments, including whether the covenant had been abandoned or the area had materially changed. It declined to refuse declaratory relief because of delay, but did not set out the final declaration: it directed that it would hear submissions on the appropriate form of declaration.