Deeds or conveyances to a property or land may contain restrictive covenants which impact what the owner can do. The owner could incur the expense of seeking planning and building control approval from a Local Council, to then find out that permission is denied by the entity with the benefit of the restrictive covenant, pursuant to terms within the deeds or conveyances.
The Upper Tribunal has the ability to remove restrictive covenants from deeds or conveyances. In particular, section 84(1)(a) of the Law of Property Act 1925 provides that by reason of changes in the character of the property or the neighbourhood or other circumstances of the case which the Upper Tribunal may deem material, the restriction ought to be deemed obsolete. If it is deemed obsolete, then the Tribunal can order that it is removed.
Obsolete Restrictive Covenant Removed
In Savage v 60 Kent Road (Maintenance) Limited  UKUT 0102 (LC), the Upper Tribunal had to decide if part of a conveyance from 1961 should be removed altogether from the title.
The part that the Applicant sought to be removed from the conveyance was as follows:
“No building shall be erected on any part of the said property nor shall any alteration be made to the external appearance of any building erected thereon otherwise than in accordance with plans and specifications to be submitted to and approved by the Vendors Surveyor and until such approval shall have been obtained no building or alteration shall commence. The Purchasers shall pay to the said Surveyor a fee of Two pounds two shillings in respect of the plans and specifications of each building or alteration submitted for approval whether such plans and specifications are approved or not.”
The conveyance from 1961 detailed the Vendors as individuals. The Applicant was able to submit evidence in the form of photographs of graveyard memorials and probate searches to show that these named individuals had long since passed away.
As such, the Applicant argued that the restrictive covenant was incapable of performance, as it was not possible to approach the deceased individuals. Additionally, the Applicant submitted that the restrictive covenant did not state that it applied to successors in title, like some of the other restrictive covenants in the conveyance. The Upper Tribunal found that this was a key submission and that as there was evidence of the deaths of the individuals, the restrictive covenant should be deemed obsolete and discharged from the conveyance.
It is therefore important to scrutinise deeds and conveyances to see if they impact owners’ abilities to deal with their properties. All of the deeds and conveyances should be carefully considered to see whether or not restrictive covenants can be removed or modified to prevent owners from falling foul of terms impacting the development.
If you’re seeking legal advice relating to restrictive covenants please call our highly experienced Property Dispute experts on 0808 252 5231 to talk through your situation with us. Alternatively, you can request a call back online.