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04 February 2022 / Andrew Francis
Issue: 7965 / Categories: Features , Property
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Bath Rugby win at home

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Victory in the Court of Appeal: Andrew Francis tackles the enforceability of covenants
  • Following the Court of Appeal’s decision in Bath Rugby Ltd v Greenwood, this article looks at the problem of deciding whether a covenant can be enforceable by anyone who claims the benefit of it and who is not the original covenantee.

To adapt the words of a onetime resident at Bath, it is a truth universally acknowledged by real property lawyers that in order to be of any practical value, a restrictive covenant affecting freehold land must have an enforcing party.

To decide whether a covenant achieves that status can be difficult. The trickiest part of the analysis of a covenant is not always its meaning, or whether it binds anyone, but whether anyone can enforce it. Over more than two centuries, the courts have devised rules about how the burden of a covenant may run and also working out how the right to enforce (‘the benefit’) of a covenant may be claimed; in each case,

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NEWS
The cab-rank rule remains a bulwark of the rule of law, yet lawyers are increasingly judged by their clients’ causes. Writing in NLJ this week, Ian McDougall, president of the LexisNexis Rule of Law Foundation, warns that conflating representation with endorsement is a ‘clear and present danger’
Holiday lets may promise easy returns, but restrictive covenants can swiftly scupper plans. Writing in NLJ this week, Andrew Francis of Serle Court recounts how covenants limiting use to a ‘private dwelling house’ or ‘private residence’ have repeatedly defeated short-term letting schemes
Artificial intelligence (AI) is already embedded in the civil courts, but regulation lags behind practice. Writing in NLJ this week, Ben Roe of Baker McKenzie charts a landscape where AI assists with transcription, case management and document handling, yet raises acute concerns over evidence, advocacy and even judgment-writing
The Supreme Court has drawn a firm line under branding creativity in regulated markets. In Dairy UK Ltd v Oatly AB, it ruled that Oatly’s ‘post-milk generation’ trade mark unlawfully deployed a protected dairy designation. In NLJ this week, Asima Rana of DWF explains that the court prioritised ‘regulatory clarity over creative branding choices’, holding that ‘designation’ extends beyond product names to marketing slogans
From cat fouling to Part 36 brinkmanship, the latest 'Civil way' round-up is a reminder that procedural skirmishes can have sharp teeth. NLJ columnist Stephen Gold ranges across recent decisions with his customary wit
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