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Restrictive Covenants upon Land

Do you own a house with a garden that is larger than you need or desire?

Have you thought that you could build a house on it?

This could lead to a substantial planning and financial gain for yourself.

However, you may meet an immediate obstacle as there could be a Restrictive Covenant affecting the land, that limits your ability to do so. For example, the use of the property might be restricted to the use for one dwelling house only.

What could happen is that your neighbour objects to your plan and then threatens legal proceedings to enforce the covenant in place.

It would be unwise to carry on regardless as you would risk losing any court proceedings and subsequently face substantial legal costs.

Your remedy for this issue lies in S84 of the law of the Property Act 1925 which enables an application to be made to the Upper House of the Lands tribunal to modify or discharge covenants if you can satisfy one of the grounds.

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Ground A: The covenant is obsolete because either the character of the property or neighbourhood has changed or there is another circumstance which the Tribunal may deem material in making the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

Remember the purpose of the Act is permissive, so designed to enable the Tribunal to make an order in appropriate circumstances. For example, in the case Re Ben Lynch 2016 (UKUT488) it was held that the existence of an extant planning permission was highly persuasive on applications of ground AA.

If you have land that has restrictions placed on it or want to find out more about Restrictive Covenants then please contact me to explore the issue more.

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