The other rights specified in Part I of the Schedule are a right to use the drains and sewers under the estate and a right to use the gardens at the top of the estate.
All these rights conferred on a plot owner are subject to the obligation to pay the annual rent charge, which in the case of a house plot is £2.50 per annum. The inadequacy of this rent charge in modern times is dealt with elsewhere.
Part ll of the Schedule sets out particulars of the rights which at the time of the original sale London Garden Suburbs l_imited (the Vendor) retained out of each plot so that forever after the plot has been subject thereto.
Clause 1 of Part Il ensured that the Purchaser of a plot did not obtain a right of light or air to any window in the house standing upon the plot. This was important. If the purchaser has acquired a right of light to the windows in the house he might have been able to prevent the Vendor from building a house on the adjoining plot.
Clause 2 of Part Il reserved to the Vendor the right to use any drains or sewers passing under the plot sold. This clause was necessary in each transfer to enable the Vendor to confer on each purchaser the right to use the drains and sewers under the whole estate as already mentioned in Part I.
Clause 3 of Part II reserved to the Vendor ownership and control of the roads paths grass verges open spaces and garden. lt also made provision that when the whole of the plots had been sold these items and the right to receive the rent charges already referred to should be vested in three trustees who should be members of the Holly Lodge Estate Committee. The provisions of this clause were duly carried out and the estate trustees at the present time are the successors in title of the original trustees.
Clause 4 of Part II was an escape hatch. Speculators developed the Estate. They realised that their scheme might not succeed. In that case they might find they had a large number of unsold plots, which could only be developed in accordance with the original scheme and were therefore a white elephant. Clause 4 was designed to enable them to escape from that situation if it arose. They could have altered the scheme and so made the unsold plots saleable. Fortunately the situation did not arise. The development was a great success and remains so to this day
We now come to Part Ill of the Schedule, which contains a number of restrictive provisions, which were designed to prevent individual plot owners from so using their respective houses as to harm, the character of the estate. These restrictions were imposed in accordance with what is known as a building scheme. As has already been mentioned the Estate was developed according to a precise scheme. London Garden Suburbs Limited prepared a plan dividing the estate into plots and also a number of restrictions which were to be imposed upon these plots with the intention that the owner of any plot was to be entitled to the benefit of the restrictions affecting every other plot and would have the right to enforce the observance of those restrictions by every other plot-owner so as to preserve the value and amenities of his own plot
ln order to have a valid building scheme it is not necessary that the restrictions affecting all plots should be identical, only that they a prearranged plan. In the Holly Lodge Estate the restrictions do in fact vary Thus on some plots flats are allowed. On plots in Swains Lane shops are permitted. At the foot of Hillway provision was made for a garage and in Makepeace Avenue we had the restaurant block.
Each plot was transferred to the purchaser thereof subject to and with the benefit of the covenants and restrictive conditions and stipulations specified in Part Ill of the Schedule. The purchaser then covenanted with the Vendor and its assigns and separately with each owner of any part of the Estate and the heirs and assigns of such owner that he, the purchaser, would observe and perform the said covenants and restrictive conditions and stipulations so far as the same ought to be observed and performed by the owner of the plot comprised in such transfer to the purchaser.
It is because each plot-owner covenanred with the heirs and assigns of every other plot-owner that today each plot owner has the legal right to enforce the observance of the restrictions by every other plot-owner. Furthermore the plot-owners are the only persons who possess that right. The Holly Lodge Estate Committee does not, as a committee, have the right to enforce the restrictions although each individual member of the Committee, being a plot-owner, does have the right. Before considering the actual restrictions it is first of all necessary to make a few general observations. A stipulation can be either positive in substance that is, a provision that the purchaser shall do what is stipulated, or it can be negative in substance that is, a provision that the purchaser shall not do what is stipulated.
When we talk of a restriction we mean a negative stipulation. When the owner of a house on the Holly Lodge Estate transfers it to someone else for example a purchaser, the right to enforce negative stipulations against the owners for the time being of other plots on the Estate passes automatically to the person to whom the house is transferred. This is not so with positive stipulations. ln order that the right to enforce a stipulation which is positive in substance may pass from one person to another it must be actually assigned by the one to the other. It is however the substance of the stipulation and not the words in which it is expressed which determine whether its nature is positive or negative.
We must also consider the obligation to perform the stipulation. This usually referred to as the burden of the covenant. When the owner of a plot on the Estate transfers it to someone else the burden of the negative covenants to which the plot is subject automatically passes to the transferee so that the transferee is under an obligation to perform such negative covenants. The burden of positive covenants however does not pass on automatically in this way
Further, the covenants were imposed in such a way that the owner of the plot is under no liability in respect of a breach of covenant committed after he has parted with all interest in it. Therefore once the original purchaser of a plot sold it, he ceased to be liable on the covenants and the purchaser was only liable in respect of the negative covenants. No one was any longer under an obligation to perform in respect of that plot any covenant, which was positive in substance. There must be very few (if any) instances where a plot is still owned by the original purchaser from London Garden Suburbs Limited. In what follows it is assumed there are none. So much for the right to enforce the restrictions. Now let us consider what are the restrictions to which every house in the Estate is subject. As already mentioned they appear in Part Ill of the Schedule.
Clause 1 of Part lll. The obligation to maintain a wall or close-boarded fence is positive in nature, and cannot be enforced. lt however implies a negative stipulation namely not to put up any other type of fence. Therefore while a plot owner cannot compel his neighbour to keep the existing wooden fence in repair he could possibly prevent his neighbour from putting up a chain link fence on the boundary referred to in the clause.
Clause 2 of Part III provides that one house only shall be erected on each plot. This is negative in substance. lt forbids the erection of more than one house and is clearly enforceable. The next part of the clause prohibits the letting of a house in separate tenements. ln other words it forbids part ofa house being let out for occupation as a separate household. In order to clarify what is intended it states that this does not prevent part of a house being let as fumished lodgings. A lodger is a person who is taken into ones home and lives there as one of the family He has no separate household and no tenancy The entire second sentence is one prohibition and is enforceable.
Clause 3 of Part Ill is negative in substance and is enforceable. lt does not attempt to compel the plot-owner to build a house. lt prohibits him from building one, which does not comply with the provisions of the clause.
Clause 4 of Part Ill could very conveniently have been consolidated with the first sentence of Clause 2. It is dealing with the same subject namely what may be erected on a plot. lt is negative in substance and is therefore enforceable.
Clause 5 of Part III is dealing with a different subject namely what the building may be used for after it has been erected. It clearly states that the building may not be used for any purpose other than a private dwelling house. “a”, the indefinite article, means “one". The building may thereof only be used as one private dwelling house.
To use one of the houses on the Estate as two flats or two residences for two families or two households would be a breach of the restriction, which is clearly negative in substance and enforceable.
The clause also forbids any trade manufacture or business except those, which it expressly permits, namely private school or the profession of solicitor, surgeon, physician or dentist. The clause then proceeds to limit what outward indication there may be that a permitted profession is being carried on.
After this the clause proceeds to place some limitation upon the nature of the business that may be carried on upon the “excepted plots”. This is obviously intended to be a reference to the shop plots in Swains Lane, which are comprised in the exception, which appears in clause 4 of Part Ill.
Clause 6 of Part III relates to the payment of the annual rent charge of £2.50_ This is clearly a positive stipulation and would be unenforceable against the present owners of the houses if this stipulation were all that the trustees had to rely upon. However it is not so. A rent charge payable in perpetuity out of a property is a legal interest in that property The rent charge was validly created by the formal part of the transfer and all the rent charges are vested in the Estate Trustees who hold in respect thereof a land Certificate issued by Her Majestys Land Registry
Clause 6 then proceeds to specify the use to which the Committee are to apply the rent charge. The Committee having received the money are bound to apply it in accordance with those provisions but only as far as the money will go which is not very far.
Clause 7 of Part III deals with the constitution of the Estate Committee and provides that it shall be governed by the Estate Regulations. It also deals with the procedure for appointing new trustees and confers upon the Committee power to make by-laws regulating the use of the open spaces and gardens upon the Estate.