Wilkinson v Kerdene [2013] EWCA Civ 44

KEY POINTS

• The repair charges could be distributed among estate facilities similar to a service charge for a block of flats. Defendants without access rights to communal areas were not obligated to pay for those portions.

• However, it's acknowledged that a fixed annual payment, linked to an inflation index rather than actual costs, cannot be apportioned. This fixed sum does not align with rights exercised, unlike a severable charge as seen in the Thamesmead case.

FACTS

• The appellants were owners of bungalows situated in the St Merryn Holiday Village near Padstow, Cornwall. The Village was developed in the 1960s and included various amenities such as a leisure complex, public house, nightclub, shop, swimming pool, tennis courts, play areas, and roads. The appellants owned bungalows in an area known as Jasmine Way, Lily Way, and Foxglove, referred to as the "new bungalows."

• The complex conveyancing history of the site included transfers of ownership and development by various entities, including Merryn Estates Limited (MEL) and Kerdene Limited. The appellants had purchased their bungalows from MEL, and the conveyances contained different wording variations known as Form A and Form B. These conveyances included covenants related to the maintenance of roads, recreational facilities, and other matters.

• Over time, Kerdene Limited acquired ownership of parts of the Village, including the leisure complex and adjoining land, and undertook efforts to restore and maintain the area.

• Kerdene sought to recover maintenance fees from the owners of the new bungalows, based on the covenants in the original conveyances. The appellants contested Kerdene's right to enforce these covenants against them.

• The central issue in the case revolved around the interpretation and enforceability of the covenants contained in the conveyances. 

COMMENTARY

• The case provided insights into the complexities of enforcing covenants in a development context and highlighted the importance of interpreting contractual language in light of the surrounding circumstances.

• The Court's decision clarified the extent to which the covenants could be enforced and provided guidance on the applicability of such covenants in a changing ownership and development landscape.