restrictive covenants

What are the options available for landowners wishing to modify or remove restrictive covenants?

Restrictive covenants impose restrictions on the use of land so that the value and enjoyment of adjoining land will be preserved. This article looks at the modification and removal of those comments.

Applying to change or remove restrictive covenants

If you would like to modify or discharge a restrictive covenant which burdens your land, you will need to make an application under Section 84 of the Law of Property Act 1925 to the Upper Tribunal. In order to succeed, you will need to satisfy one of the grounds within Section 84.

In summary, they are:

Ground A: The covenant is obsolete because either the character of the property or neighbourhood has changed or there is another circumstance which the Tribunal may deem material in making the covenant obsolete.

Ground AA: The covenant impedes a reasonable user of the land, or would impede said user should the covenant remain unmodified. The Tribunal must be satisfied that the restriction, in impeding the reasonable user, does not bring any practical benefits of substantial value or advantage to the person or people benefitting from the covenant, or the covenant is contrary to the public interest. Finally, money must be an adequate compensation for the loss suffered as a result of the restriction/ modification.

Ground B: Those with the benefit of the covenant have agreed to discharge or modify it.

Ground C: Discharge or modification of the covenant would not injure persons with the benefit of it.

Why might you want to amend or discharge a covenant?

A common situation where an individual may consider modification or discharge of a restrictive covenant to be necessary, is where planning for development is prevented by a restrictive covenant. Case law has shown that the existence of a planning permission is highly persuasive in an application under ground AA. For example, in Re Ben Lynch [2016] UKUT 488 (LC) the Tribunal allowed the modification of a restriction which prevented more than one house per plot being build under ground AA, as the practical benefits of the covenant were not of substantial advantage of value and could be adequately compensated.

For more information on restrictive covenants and the importance of considering them before starting development, please see this article. You can also read about “annoyance covenants” here.

If you would like advice on the possibility of modifying or discharging a restrictive covenant, please contact a member of our property litigation team.