restrictive covenants
📖 What is restrictive covenants? Meaning and definition
Restrictive covenants are specific rules or limitations placed on a property, which dictate what can or cannot be done with it. These covenants are legally binding and are typically established to protect the value or amenity of neighbouring properties. For instance, a common restrictive covenant might limit a plot of land to a 'single dwellinghouse', meaning only one house can be built on it, preventing further development like multiple flats or additional dwellings.
When a property owner wishes to use their land in a way that breaches such a covenant, they may apply to the Upper Tribunal (Lands Chamber) for a modification or discharge of the covenant. This process involves demonstrating that the covenant is either obsolete, no longer provides practical benefits of substantial value or advantage to those it was intended to protect, or that its modification or discharge would not injure anyone who benefits from it.
The Tribunal considers various factors, including the original purpose of the covenant, the current circumstances of the land and surrounding area, and the potential impact on those who currently benefit from the covenant. Successful applications often involve proposals for development, such as demolishing an existing structure to build multiple flats or new dwellings, or changing the permitted use of a commercial unit, for example, from retail to medical use.
If the Tribunal agrees to modify or discharge the covenant, it allows the property owner to proceed with their intended use or development, provided the conditions for modification or discharge under the relevant law are met.
📋 Requirements
- The covenant must be obsolete, meaning it no longer serves its original purpose.
- The covenant does not secure practical benefits of substantial value or advantage.
- The modification or discharge of the covenant will not injure anyone who benefits from it.
- The proposal involves a breach of an existing covenant, such as building multiple dwellings where only one is permitted.
📝 Procedure
- An application is made to the Upper Tribunal (Lands Chamber) under Section 84(1) of the Law of Property Act 1925.
- The Tribunal hears arguments from the applicant and any respondents who benefit from the covenant.
- The Tribunal assesses whether the covenant is obsolete or if its modification/discharge would injure anyone.
- A decision is made by the Tribunal to either discharge or modify the restrictive covenant.
💡 Examples
- A property owner wants to demolish a single house and build eight flats, which breaches a covenant limiting the land to a single dwellinghouse.
- An applicant seeks to knock down a bungalow and erect two new dwellings, requiring the modification of a single dwellinghouse covenant.
- A leasehold retail unit in a London area has a covenant preventing medical use, and the applicant wishes to modify it to allow for medical services.
- A developer proposes to build multiple homes on a plot of land that is currently restricted to a single residential property by a covenant.
📚 Legal basis
- Law of Property Act 1925
- Tribunals, Courts and Enforcement Act 2007
❓ Frequently asked questions
What does 'single dwellinghouse covenant' mean?
A 'single dwellinghouse covenant' is a type of restrictive covenant that limits the use of a piece of land to only one residential building, preventing the construction of multiple homes or flats on that site.
Can a restrictive covenant be changed or removed?
Yes, restrictive covenants can be modified or discharged (removed) through an application to the Upper Tribunal (Lands Chamber) under Section 84 of the Law of Property Act 1925, if certain legal conditions are met.
What happens if I breach a restrictive covenant?
If you breach a restrictive covenant, the person or entity who benefits from that covenant could take legal action against you, potentially seeking an injunction to stop the breach or claiming damages. It's best to seek modification or discharge before breaching.
What does 'obsolete' mean in the context of a restrictive covenant?
A covenant is considered 'obsolete' if its original purpose can no longer be achieved, or if it has become pointless due to changes in the character of the property or the surrounding area, as determined by the Tribunal.
Will modifying a covenant always injure someone?
Not necessarily. The Tribunal assesses whether the modification or discharge will cause 'injury' to anyone who benefits from the covenant. 'Injury' typically refers to a loss of practical benefits of substantial value or advantage.
Who decides if a restrictive covenant can be modified?
The Upper Tribunal (Lands Chamber) is the body responsible for deciding applications to modify or discharge restrictive covenants, based on the evidence presented and the legal criteria set out in the Law of Property Act 1925.