Summary

The judgement stated:

"Looking at the matter in the abstract, one might have thought it was for the vendors to negotiate the removal of those covenants from the title. But it is clear that they were not so treated and that all negotiations relating to those covenants and the price to be paid for them were conducted by the purchaser."

So "there's the rub".

The restrictive covenant was between the Covantee and the Covenantor, the covenant runs with the land and successors in title are bound by the restrictive covenants that apply to the land.

The contract was conditional upon the release of the restrictive covenants and ALL parties concerned were aware of the that.

The purchaser, purchasers solicitors, vendor solicitors, the barrister, Master Munro, Vice-Chancellor and Lord Justice Smith were all aware that a formal release would have to be obtained.

The vendor asked the purchaser to forward the Planning Notice of Approval to the Liverpool Victoria. The Liverpool Victoria wrote to the purchaser and said that they required Building Regulation Approval.

The purchaser notified the vendor.

The vendor knew that the Liverpool Victoria had asked for the Building Regulation Approval and to enable the vendor to obtain the release of the covenant the vendor had to agree with the covenatee's terms or apply to Upper Tribunal (Lands Chamber) under Section 84 of the Law of Property Act 1925.

The Building Regulation Approval was nothing to do with the contract and the vendor asked the purchaser if he could apply for the Building Regualtion Approval.

The purchaser agreed and paid for the application to the Local Authority.

During the time of the application the vendor visited the purchasers home and discussed the Building Regulation application.

Upon receipt of the Building Regulation Approval the purchaser forwarded the Building Regulation Notice of Approval to the Liverpool Victoria.

The Liverpool Victoria wrote to the purchaser and said that they were willing to release the restrictive covenant and the cost.

The purchaser notified the vendor.

The contract was conditional upon the release of the restrictive covenants.
The purchaser had no legal relalationship with the Liverpool Victoria and was not legally bound by the restrictive covenant.

At no stage was a formal release of the covenant given.

The vendor's solicitors issued a notice to complete

The vendors issued a notice to complete the sale despite not being ready, as there was no formal release of the restrictive covenant and condition 12.i. had not been fully met, leading the purchaser's solicitor to declare the notice invalid due to the absence of a completion deadline.