Occasionally deeds to a property or land may contain an old archaic covenant that restricts the way an owner can deal with the land or property. This may impact on the ability to develop, which can be frustrating, should an owner want to extend their premises or build another property on their land.
It is possible to apply to the Tribunal to remove or modify covenants. One of the gateways to achieving this is pursuant to obsolescence. In other words, the covenant no longer holds a purpose due to the amount of time that has passed.
Statutory Grounds of the Application
The Tribunal’s powers to discharge or modify a restrictive covenant can be found in section 84(1) of the Law of Property Act 1925. Obsolescence is ground (a), which provides as follows:
“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.”
How Ground (a) is interpreted
When making an application under ground (a) it is necessary to consider the following:
- What is the purpose of the covenant?
- Has the character of the property or neighbourhood changed?
- Has the covenant become obsolete by reasons of the changes in character, so that the purpose of the covenant can no longer be achieved?
- Has a material circumstance other than a change in the character of the property or the neighbourhood had an effect too?
Example of a Successful Application
In Fermyn Wood  UKUT 0411 (LC), the Tribunal had to decide if a conveyance from 1929 should be removed altogether from the title deeds.
The covenant looked like this:
“No house or other buildings should be erected on the said piece of land except those for use in connection with the adjoining house of the purchaser unless the southern boundary of the said piece of land should have a frontage to a public road or street.”
This covenant therefore permitted buildings if a public street was created along the southern boundary of the parcel of land in question, or if a new building was connected to the original adjoin house built on the land.
However, since creation of the covenant in 1929, the part of the land which was still subject to the covenant was sold on and could no longer be deemed to be associated with the original adjoining house. Additionally, the southern boundary now had gardens next to it. It was therefore not possible for a public road or street to be on the southern boundary of the land. This resulted in the above covenant being discharged.
It is clear that a number of factors must be taken into account before a successful application to discharge a covenant can be made. Applicants should consider the principles set out in Fermyn Wood  UKUT 0411 (LC), prior to making the application.