Modification and discharge—restrictive covenants
Modification and discharge—restrictive covenants

The following Property guidance note provides comprehensive and up to date legal information covering:

  • Modification and discharge—restrictive covenants
  • Application to the Lands Chamber of the Upper Tribunal (previously the Lands Tribunal)
  • The grounds for release or discharge
  • Objections
  • Further provisions and modifications
  • Jurisdiction
  • UT’s discretion
  • Application to the county court

Application to the Lands Chamber of the Upper Tribunal (previously the Lands Tribunal)

A person with an interest in freehold and certain leasehold land can apply to the Lands Chamber of the Upper Tribunal (previously the Lands Tribunal) (the UT) for a restrictive covenant to be discharged or modified. Leasehold land must be let for a term of more than forty years of which twenty-five or more have expired (mining leases are excluded).LPA 1925, s84

Aside from this, there are no other special considerations that the UT should take into account in exercising its discretion in respect of a leasehold, as opposed to a freehold, interest.Shaviram Normandy Ltd v Basingstoke and Deane Borough Council [2019] UKUT 256 (LC)

There is no saving provision if a covenant affects leasehold land for a term of more than 40 years, but 25 years have not yet expired due to an implied surrender and re-grant—no application can be made to modify or discharge the covenant.

An applicant is classed as having an interest in land if he has exchanged contracts to purchase it, even if the contract is conditional on the making of an order by the UT.

The intention is not to enable a person to expropriate the private rights of another (with or without compensation) merely for his own profit Re Henderson's Conveyance [1940] 4 All ER 1

In Re Phillips [2011] UKUT 346 (LC), the tenants of a number of holiday chalets applied unsuccessfully to remove a restriction on occupation in January and February, which the landlord confirmed allowed it to carry out maintenance works more conveniently and economically. The UT