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Lawbite: Keep your ear to the ground

  • United Kingdom
  • Litigation and dispute management
  • Real estate
  • Real estate dispute resolution

14-10-2019

In the matter of an application by (1) Gary Owen (2) Heather Lynn Richards [2019] UKUT 171 (LC)

A recent Upper Tribunal case highlights the importance of ensuring that applications to modify or discharge restrictive covenants are made on the correct grounds.

The applicants had been unable to sell their home in East Dulwich, London, because historic restrictive covenants prevented them from:

1)             using the property other than as a private home;

2)             keeping multiple pets;

3)             playing music after 11pm; or

4)             altering the structure or exterior.

They therefore applied to the Upper Tribunal for discharge of the restrictions relying on grounds (a) and (c) of Section 84(1) Law of Property Act 1925.  These grounds would be satisfied where the restrictions were now obsolete due to the change in the character of the property over time and/or that discharge would not cause injury to their neighbours.

The Tribunal declined to discharge the restrictions on either of these grounds but suggested that the outcome may have been different had the applicants argued that the restrictions impeded some reasonable user of the land (ground (aa)). The Tribunal considered the restrictions may be unduly onerous, but could not rule on a ground the applicants had not advanced. 

The restrictive covenants were, however, modified so as to prevent the neighbour who benefited from the covenants from unreasonably withholding consent/ permission.

Key points

  • Applicants should be careful to rely on the correct grounds when making an application to the Tribunal for discharge or modification of a restrictive covenant, the Tribunal can only decide on the application before it
  • The case highlights the importance of obtaining legal advice to obtain the best possible outcome. The applicants were unrepresented in this matter. 

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