Restrictive covenants can present a significant barrier to landowners. They can be particularly bothersome when a landowner wishes to apply for planning permission to develop their land.

Removing or modifying restrictive covenants on land in England and Wales is a complex legal process. It is governed by both statutory provisions and case law.

These covenants restrict the use or development of land in some way. Restrictive covenants affect property value and owners’ ability to make changes to their land. For this reason, it is common for property owners to seek advice and assistance to discharge or modify a restrictive covenant.

ARC Costs have a network of specialist property dispute lawyers. They can assist in having restrictive covenants removed on residential and commercial property.

What are restrictive covenants?

Restrictive covenants in land law are binding conditions written into the deed of a property. This is done to restrict the buyer from using the land in specific ways. Common restrictive covenants can range from limitations on building development to prohibitions on business use.

Whilst initially serving to protect the value and enjoyment of adjacent properties, over time, these covenants can become outdated or unduly burdensome. This leads owners to seek their removal or modification.

Removing restrictive covenants on land: Legal framework

The primary legal framework for addressing restrictive covenants in England and Wales is the Law of Property Act 1925, supplemented by the Lands Tribunal Act 1949. This established the Lands Tribunal (now part of the Upper Tribunal (Lands Chamber)).

This body has specific powers to discharge or modify restrictive covenants under certain conditions, as outlined in Section 84 of the Law of Property Act 1925.

The Tribunal considers applications based on several grounds, including that the covenant is obsolete, impedes some reasonable use of the land, or that the beneficiaries expressly or implicitly agree to its modification or discharge.

Removing restrictive covenants on land: The process

Applying to the Upper Tribunal

Applying to the Upper Tribunal (Lands Chamber) is a common route for those seeking to remove or modify restrictive covenants. The applicant must convincingly demonstrate that at least one of the specific grounds under Section 84 applies to their case. These grounds include:

Obsolescence:

The covenant no longer serves its original purpose due to changes in the character of the property or the neighbourhood.

Impediment to reasonable use:

The covenant prevents the reasonable use of the land, causing hardship to the owner, and the covenant does not secure significant benefits to others.

Beneficiaries’ consent:

The individuals or entities benefiting from the covenant agree, for compensation or otherwise, to its discharge or modification.

The Tribunal’s decision will consider the covenant’s purpose, the benefit it provides versus the detriment to the landowner, and broader public interests. Successful applications can lead to the complete removal of the covenant or its amendment to allow certain uses of the land.

Negotiation with Beneficiaries

Negotiation with the beneficiaries of the restrictive covenant is another avenue for removal or modification. This process involves identifying all parties who benefit from the covenant and negotiating directly with them to agree on its discharge or amendment.

The negotiation may result in a formal agreement where the beneficiaries are compensated in return for relinquishing their rights under the covenant.

This method can be quicker and less costly than a Tribunal application, but its success heavily depends on the beneficiaries’ willingness to negotiate. Legal advice from a property litigation team is crucial in these negotiations to ensure that any agreement is legally binding and effectively removes or modifies the covenant.

Other Legal Considerations and Challenges

Other legal considerations include the doctrine of merger. This is where the ownership of the dominant and servient tenements comes under the same party, potentially extinguishing the covenant. Additionally, in some cases, covenants may be deemed unenforceable due to ambiguity, lack of proper registration, or failure to meet the requirements that bind successors in title.

However, removing or modifying restrictive covenants is fraught with challenges. Identifying and negotiating with all beneficiaries can be difficult, especially if the covenant benefits multiple properties or the beneficiaries are not clearly defined. Moreover, the process of applying to the Tribunal is complex and can be time-consuming and expensive.

When a restrictive covenant has been successfully removed, a Deed of Release will be drafted. It is often witnessed and signed by the parties to formalise the agreement.

In certain situations, a court order or judgment might direct the parties to execute a deed of release, or the terms of the release might be part of a settlement agreement that concludes litigation.

Once the Deed of Release is executed, an application must be made to the Land Registry to remove the covenant from the register of the affected property. The application should include the executed Deed of Release and may require additional documentation, depending on the specifics of the case.

How can ARC Costs assist?

ARC Costs have a network of solicitors who can provide practical advice and assistance on removing restrictive covenants on land.

In addition to introducing you to a solicitor, we can also assist in the recovery and negotiation of legal costs in land dispute cases, whether you are the paying or receiving party.

ARC Costs are highly experienced in advising and assisting with costs issues and disputes in different areas of law. As Costs Draftsman and Costs Lawyers, we can assist in your Commercial Litigation Costs issues.

If a costs award has been made, allowing you to recover costs from your opponent, we can assist with preparing a Bill of Costs on your behalf to ensure maximum recoverability. We can also assist in Costs Negotiations and represent you at detailed assessment proceedings which can determine the amount of costs you may be able to recover.

If you have been ordered to pay costs to your opponent, we can assist in disputing costs which may be sought and which you may deem to be excessive and unreasonable. We can do this by way of preparation of  Points of Dispute and also through negotiations to ensure you will only pay for costs which are reasonably incurred and not exaggerated.

Should you wish to discuss your costs query with us, please contact us on 01204 397302 or via email at info@arccosts.co.uk. Alternatively, you can complete our online query form and we will contact you to discuss your query further. We can provide expert legal advice on costs in our free, no obligation initial consultation.

We may receive payments from third party solicitors on our panel to whom we may refer your claim. We will never charge you for any referrals made to our panel of third parties.