Larkins v Bradshaw

• Jurisdiction: Montserrat
• Court: High Court (Montserrat)
• Judge: Arrindell, J.
• Judgment Date: 08 April 1981
• Neutral Citation: MS 1981 HC 1
• Docket Number: Suit No. 42 of 1980
• Date: 08 April 1981

Larkins

and

Bradshaw

Arrindell, J.

Suit No. 42 of 1980

High Court

Real property - Restrictive covenant

Held: There was a restrictive covenant which ran with the land and the benefit passed to the plaintiff. The two lots in question at all material times formed part of a building scheme involving the area. The closeness with which the defendant built to the plaintiff's property was a breach of covenant and an invasion of the plaintiff's privacy. Counterclaim dismissed. Judgment for the plaintiff in the sum of $9,600.00

Facts: This was an action brought by the plaintiff against the defendant seeking damages for breach of covenant in relation to the erection of a building by the defendant. The plaintiff and defendant were adjoining owners. After the plaintiff brought the action in court seeking an injunction, the defendant went on to complete the building structure at a purposely rapid pace.

Appearances:

Mr. John C. Kelsick for the plaintiff.

Mr. John S. Weekes and Mr. David Brandt for the defendant.

1 Arrindell, J.This is an action brought by the plaintiff against the defendant. The Writ of action claims an injunction or damages or both for breach of a covenant in relation to the erection of a building at Old Towne, Montserrat, by the defendant. On his Statement of Claim the claim for relief by way of injunction is not repeated, and in fact counsel for the plaintiff stated in court at the outset that this remedy was no longer sought by the plaintiff.

2 A preliminary objection was raised by counsel for the defendant on the ground that no formal order consequent upon the Summons for Directions had been filed by counsel for the plaintiff. This was eventually conceded by the latter, and after an adjournment at his request the Order was filed.

3 The plaintiff alleges that he is the owner of a lot of land, Lot Number 145 at Old Towne, and that the defendant is the owner of an adjoining lot, number 151. The plaintiff alleges that in breach of a covenant written on defendant's title, which he alleges to be identical to a covenant on his own title, the defendant on or about the 11 ^th May 1980 began laying out the foundations for a house on the said Lot 151 closer than 25 feet from the plaintiff's boundary as forbidden by the said covenant. That finally the building was virtually completed by the time the trial commenced, in spite of correspondence and discussions between them at the instance of the plaintiff, to have the matter reconciled prior to any continuation of building. In spite also of certain interim court process attempted by the plaintiff, to restrain further construction pending the hearing of the suit. I will advert to these interim processes later in this judgment, as they seemingly became the basis for a counterclaim by the defendant.

4 In his defence the defendant has relied upon almost every conceivable defence to a suit of this nature. Firstly he denies that the noting on the two titles are restrictive covenants; and that even if they could be so construed they cannot be relied upon nor enforced by the plaintiff. Another limb of the defence is that the defendant obtained permission – the pleading do not mention from whom – for the construction of his said house on his said lot 151. Other defences pleaded include the following allegations, found at paragraph 3 of the defence:

• (i) That the location of the defendant's house is in keeping with general building practice both in the area and in the Colony;

• (ii) That the various discussions resulting in agreement being reached between the plaintiff and the defendant concerning the actual sitting of the defendant's house;

• (iii) That the plaintiff is estopped from challenging the positioning of the defendant's house;

• (iv) That the plaintiff is guilty of mala fides in prosecuting his action against the defendant.

5 Paragraph 4 of the defence contains allegations to the effect that far from diminishing the value of the plaintiff's property [as alleged in the Statement of Claim] the defendant's property enhances the appearance and value of properties in the area.

6 The covenant at issue appears at the back of the certificates of title for the two lots, and is recited in the pleadings at paragraph 2 of the defence and Counterclaim. It reads:

“2. All building erected on the premises shall be of permanent construction and the residence shall occupy a ground space area of not less than 1, 000 square feet, exclusive of garages, and/or servant's quarters; and no building shall be constructed on the premises nearer than 25 feet to the front or rear lot lines or nearer than 25 feet from the side boundary lines thereof without the written approval of the MONTSERRAT REAL ESTATE COMPANY LIMITED.”

7 The essential physical facts are not in dispute and at virtually every stage of the trial the issues centered around questions of law.

8 I find the following facts: The plaintiff, a quantity surveyor and building contractor, is the owner of Lot No. 145 at Old Towne, on which stands his dwelling house The defendant real estate agent, is owner of an adjoining lot No. 151 to the north. In early May of 1980 the defendant began preparations on his said land for the construction of a dwelling house, which he intended to let on rent. The evidence shows that he is the owner of other lots in that area, on one of which he resides, the others with dwelling houses, which he lets out on rental.

9 The plaintiff, on observing the defendant's building preparations on Lot 151; realized that the construction would come closer to the plaintiff's boundary than 25 feet, immediately spoke with the defendant, who stated that his plans showed a distance of 11 feet and not 25 feet. The plaintiff drew to his attention the said covenant, which stipulated a distance of not less than 25 feet. The plaintiff followed up with a letter to the defendant the following day reiterating the existence of the covenant. [Exhibit D.L.1.]

10 The defendant replied by letter dated 22 ^nd May [Exhibit D.L.2] to the effect that the plaintiff himself was on breach of the said covenant, but that the defendant's house would not obstruct plaintiff's view or invade his privacy. There followed a meeting with defendant on his land on 27 ^th May 1980, offering suggestions for resolving the dispute. [Exhibit D.L.3.] Despite the exchange of further letters between them, no compromise was arrives at, and the plaintiff brought action in court seeking, inter alia, an injunction to this effect, issuing out of this court during vacation [coming from the Registrar in the absence of the judge] was ignored by the defendant, who went on to erect and complete the building, after resuming the work at a purposefully rapid pace.

11 The defendant in his pleading and testimony contends that an agreement had in fact been reached between them, and that he proceeded to build according to that agreement. This I do not accept. I here set out the relevant letter [Exhibit D.L.3] in its entirety.

29 ^th May 1980.

Neville Bradshaw Esq.,

P.O. Box 270,

Plymouth,

Montserrat.

Dear Neville,

Proposed House Lot 151 Old Towne.

This letter is to confirm what has transpired during the past forty-eight hours plus further subject matter.

At 5.30 p.m. on Tuesday the 27 of this month a meeting was held on site at which were present Nessrs. J.C. Kelsick, D. Brandt, A. Dyett and ourselves. After lengthy discussions the following points were agreed upon:–

• 1. That the rear wall of the proposed Utility Room be positioned at a point 25' – O” from the boundary line to Line 145.

• 2. That a profile be set up to determine the position and level of the highest ridgeline of the proposed new building.

• 3. That is the position and level of the highest ridge met with my approval then I would not insist that you comply with the terms of the restrictive covenant as far as the East and West boundaries are concerned.

During the morning of the 28 ^th you telephoned me to say that you had discussed the problem with your designer and had decided to remove the Utility Room wing entirely and to reposition it under the ground floor suspended slab at the front of the building. In return for this you asked as to whether I would accept the position of the main rear wall as dug. I replied that I would give the matter consideration as soon as the position and level of the highest ridge has been determined.

At around 5.00 p.m. the same evening, in conjunction with your designer and your surveyor, the position and elevation of the highest ridgeline was established. This arrived at by setting the floor level 6” (six inches) above the existing ground level at the North East Corner of the building nearest to Lot 145 a point in fact 19'-0” from my boundary. The elevation of the highest ridge was determined at “11'-6” (eleven feet six inches) above the horizontal “batter board” installed by your surveyor on the Western boundary.

To bring this matter to a conclusion as far as we are concerned I propose the following:–

• 4. that the position of the building, less the Utility Room wing, be left as now set out; the nearest point of your building line would be 19'-0” (nineteen feet) from my boundary.

• 5. That the highest ridge line be dropped 3'-0” (three feet below the now established highest ridge line, i.e. 8'-6”(eight feet six inches) above the horizontal batter board installed by your surveyor on the Western boundary.

• 6. That if a clothes lines, clothes airer or similar device is to be erected externally that it be positioned at the North East Corner or down the Eastern side of the Lot.

In consideration of you complying with the last three clauses then I would be prepared to waive my rights with regard to the restrictive covenant as to the relationship of a building to the property boundaries on the South, East and West.

However, irrespective of all the foregoing, I feel that you are morally bound to inform...