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The Law Society - Conveyancing

15

Nov

2018

Discharging or Varying Restrictive Covenants – the Basics

Checking the title deeds for any onerous covenants is just one of the jobs for a Conveyancing Solicitor.  In some cases, prospective purchasers will be faced with a title which prohibits any changes to the property unless they have the consent of a neighbouring property regardless of whether they are granted planning permission for the works.  This can be extremely disappointing especially if a purchaser believes they have found their dream home.

Under the Law of Property Act 1925, section 84, a person with an interest in freehold and certain leaseholds land can apply to the Land Tribunal for a restrictive covenant to be discharged or varied.  There are four statutory grounds which if established, allow the Tribunal to do this.

  1. If by reason of changes in the character of the property or the neighbourhood or other circumstances of the case which  the Tribunal may deem material, the covenant is obsolete (section 84(1)(a))
  2. If the continued existence of the covenant would impede some reasonable use of the land for public or private purposes  (section 84(1)(aa))
  3. If the beneficiaries expressly or impliedly agree (section 84(1)(b))
  4. If the proposed discharge or modification will not injure the persons entitled to the benefit of the restriction (section 84(1)(c))

In Lamble v Buttaci and another [2018] UKUT (LC), the neighbours relied on restrictive covenants which prevented the applicants erecting any buildings on their land without first obtaining the neighbour’s written approval of plans.  The neighbours refused and therefore the applicants applied to the Tribunal to modify the restrictive covenants under section 84(1).  In this case, the Tribunal was prepared to hold that the covenants impeded a reasonable use of the land regardless of whether the neighbour’s refusal of consent was reasonable or not .  This  means that potential applicants do not need to worry about making applications to the court to determine whether their neighbour’s refusal of consent was an unreasonable one (as had been suggested in an earlier case); instead an applicant can simply proceed to an application to seek a modification of the covenant under section 84(1).

If you have restrictive covenants you would like assistance with or would like to discuss these issues further, then please contact us.  We have a team of property experts who can help.

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