Objections to the modification of a restrictive covenant under section 84(1) of the Law of Property Act 1925 must be based on the actual or proposed use, not on fears of what may happen in the future.
The Upper Tribunal (Lands Chamber) has considered this principle in Coven Care Homes v Hockney and others [2024] UKUT 384 (LC).
The case concerned a four-bedroom house in a cul de sac of four similar houses on a small residential estate in Hammerwich, Staffordshire. All the houses on the estate were bound by covenants which restricted their use to private dwelling houses only and prohibited the carrying on of any business or trade.
The property was let to Coven, which had operated it as a care home for two children with learning difficulties since January 2023. The children had their own bedroom and were looked after by two teams of two trained carers. The carers lived in, operating on 48-hour shifts with changeovers taking place at 8am every other morning.
Coven sought modification of the covenant to enable the property to continue to be used as a children’s home. Its application relied upon two grounds in section 84(1): (aa) that the restriction impeded a reasonable use of the land and secured no practical benefits of substantial value or advantage to those benefiting from it; and (c) that modification of the restriction would not cause injury to those entitled to its benefit.
The application was opposed by owners of 15 of the 20 homes on the estate. Their concerns focused on the consequences of relaxing the covenant: an increase in traffic and parking issues; a future increase in the number of children or use for adults as a secure unit; and setting a precedent for other properties to do the same which would change the character of the neighbourhood.
The tribunal concluded that the suggested problems of parking generated by the property were illusory. There was ample space on the drive for the carers and in the cul de sac for infrequent visitors. Fears of intensification of use were not about what was currently happening and what the applicant wished to continue. Modification of the covenant for the proposed use, which was not obvious, would not create a risk of other residents deciding they could ignore the covenant, as demonstrated by the scale of opposition to the application.
The objectors had not identified any injury they would sustain if the proposed modification was permitted. Ground (c) was established and the tribunal exercised its discretion to modify the covenant to allow the current use to continue.
Louise Clark is a property law consultant and mediator
