Restrictive covenants often influence the use and enjoyment of property, protecting the character of developments and neighbourhoods. But what happens when these covenants seem outdated or obstructive? Section 84(1) of the Law of Property Act 1925 provides a framework for challenging, discharging, or modifying restrictive covenants in specific circumstances.

When can a Restrictive Covenant be challenged?

Section 84(1) allows the discharge or modification of restrictive covenants if:

  1. Obsolescence: Changes in the property, neighbourhood, or other material circumstances make the covenant obsolete.
  2. Impediment to Reasonable Use: The covenant restricts reasonable use of the land, without providing practical benefits to the party entitled to enforce it or is contrary to public interest.
  3. No Injury to Beneficiaries: The proposed change does not harm those entitled to the covenant’s benefit.

When does a Restrictive Covenant become obsolete?

The Upper Tribunal (Lands Chamber) recently examined this in a case involving a residential property in Cornwall. Here’s how the tribunal approached the question of obsolescence:

  • The Context: The property, part of a 1970s development of single-story bungalows with large gardens, was subject to a covenant restricting any new buildings on the land except for the original dwelling. The applicant sought to construct a two-bedroom detached dwelling with access to a nearby road, for which planning permission was already secured.
  • The Covenant’s Purpose: The restriction aimed to maintain the character of the estate as a “high-class residential area” with lower-density housing and spacious plots.
  • Tribunal’s Findings: While the surrounding area had changed significantly, the core character of the development remained intact. The restriction continued to serve its original purpose, preserving the estate’s lower-density character. Thus, the tribunal ruled the covenant was not obsolete and could not be modified.

The tribunal considered factors outlined in the case of Adams v Sherwood (Re Fermyn Wood) [2018], including:

  1. The covenant’s original purpose.
  2. Changes in the property or neighbourhood.
  3. Whether those changes rendered the restriction obsolete.
  4. Other relevant material circumstances.

The decision underscores the importance of evaluating obsolescence in light of the covenant’s purpose and the specific character of the development.

Key takeaway

Whether a restrictive covenant is obsolete depends on the context, not just the passage of time. Property owners must carefully assess changes in the property or neighbourhood and the covenant’s impact on its beneficiaries before seeking a modification or discharge.

How we can help

At Lewis Denley Solicitors, we can assist you in navigating development restrictions, planning permission issues, or neighbourhood covenants.