Restrictive covenants: Tribunal has no jurisdiction to discharge covenant affecting disposal of land

The Upper Tribunal (Lands Chamber) only has power to modify or discharge covenants which are restrictive of user of land. In Re Cammiade: 1 Acacia Grove [2023] UKUT 96 (LC); [2023] PLSCS 75, the Tribunal considered the application of the jurisdiction under section 84 of the Law of Property Act 1925 to modify or discharge restrictive covenants in freehold and leasehold land.  The applicant sought to discharge a restriction binding her long leasehold interest in Flat 1, Acacia Grove, New Malden, Surrey. Flat 1 was one of four in a two-storey block, directly above Flat 3. In 1983, the owners of Flats 1 and 3 entered into a deed of covenant which had subsequently been lost. The Tribunal speculated that since the flats were subject to 999-year leases, the lost deed contained mutual covenants concerning the occupation, upkeep and management of the building which could be enforced by the two owners without needing to rely on their landlord. In 1988, the then owners of Flats 1 and 3 applied to the Land Registry for the entry of a restriction against each title to the effect that no transfer or lease could be registered without the consent of the owner of the other flat. The title to Flat 3 had been closed and replaced by a new title number but the restriction remained on the title to Flat 1 and was an obstacle to sale. The registered proprietor of Flat 3 had failed to respond to requests to consent to the removal of the restriction. The applicant sought to discharge the restriction under section 84(12) of the 1925 Act, which extends to covenants in leases of 40 years or more where more than 25 years have expired the Tribunal’s power to modify or release restrictions affecting freehold land. The Tribunal can only modify or discharge covenants restrictive as to the user of land. The covenant in question was entirely negative in form and effect: it prevented the registration of a transfer or lease without the consent of the owner of Flat 3. However, unless it was a restriction as to the user of Flat 1, the Tribunal had no jurisdiction to discharge it. In the Tribunal’s view, the restriction was clearly not a restriction as to the user of Flat 1 since it did not impinge directly or indirectly on what the flat could lawfully be used for. It was concerned only with the completion of a disposition by registration in the register of title. The application was dismissed. Louise Clark is a property law consultant and mediator