Removing or Modifying a Restrictive Covenant in the UK

In the United Kingdom, restrictive covenants are contracts that impose certain conditions on the use of land. These covenants are legally binding and are often used to protect the interests of landowners. However, there are instances where these covenants may need to be removed or modified. Understanding the legal processes and criteria for doing so is essential for both landowners and property professionals.

Understanding Restrictive Covenants

Restrictive covenants are typically found in property deeds and are designed to maintain the character and value of neighborhoods or to protect specific views, access to sunlight, and other essential property rights. They are a fundamental aspect of property law and often remain in place for the duration of the land's ownership.

Legal Framework and Judicial Disputes

According to the Law of Property Act 1925, specifically section 841, applications can be made to the Lands Chamber of the Upper Tribunal (previously known as the Lands Tribunal) to seek the removal or modification of a restrictive covenant. Although most covenants are well-written and enforceable, there are instances where they may be challenged.

According to court guidelines, the most common grounds for challenging a restrictive covenant include:

Conditions that are unfair or violate one's human rights. Changes in the character of the neighborhood or surrounding properties that render the covenant obsolete. The covenant impedes reasonable use of the burdened land without providing a positive benefit to the covenantee. Agreement by the covenantee, either expressly or implicitly, to remove or modify the covenant. The proposed modification or discharge would not significantly injure the covenantee.

These grounds must be clearly demonstrated to support the removal or modification of the covenant. The process can be lengthy and costly, but it is an option for resolving disputes over restrictive covenants.

The Tribunal Process

Aside from judicial challenges, there are other methods to remove or modify a restrictive covenant. One such method is through a registered deed granting a benefit to the burdened land. This process can be more straightforward and less contentious than seeking a judicial ruling.

The Lands Chamber of the Upper Tribunal has the authority to award compensation to the covenantee if the covenant is modified or removed. However, this compensation is based on the actual loss of value to the covenantee's land, rather than a loss of bargaining position. This type of compensation is distinct from that awarded for the breach of a restrictive covenant.

Abandonment of a Breach

In some cases, a breach of a restrictive covenant may be considered abandoned if it has continued without objection for a certain period. The landmark case Hepworth v Pickles [1900] provides a precedent for this principle.

According to Hepworth v Pickles, a breach could be considered abandoned if it had persisted for 24 years before enforcement action was taken. However, subsequent case law has reduced this period to 20 years or less. The Council of Mortgage Lenders (CML) guidelines further reinforce the 20-year rule, stating that if the breach has continued for more than 20 years and there is no risk to the mortgagee's security, indemnity insurance is not required.

Conclusion

In conclusion, removing or modifying a restrictive covenant in the UK is a complex process that requires careful consideration of legal grounds and procedures. From judicial challenges to the Lands Chamber of the Upper Tribunal to registered deeds and the abandonment of breaches, there are multiple avenues available. Understanding these options can help property owners and professionals navigate the legal landscape of restrictive covenants effectively.