Where a personal covenant can no longer be complied with because the person to whom it was given is dead – or in the case of a company, no longer exists – the tribunal will discharge the covenant on the basis that it is obsolete under section 84(1)(a) of the Law of Property Act 1925.
The Upper Tribunal (Lands Chamber) have considered this principle in Ball & Anor v Fulton [2025] UKUT 135 (LC).
The applicants owned 23a Park Avenue South, Harpenden. The respondent, objector was their neighbour at 23 Park Avenue South. 23a became a separate title in September 1962 when the then owner of 23, Edward Warfield, sold part of his land.
The purchasers entered into a number of covenants with Warfield as vendor, for themselves and their successors in title for the benefit and protection of the vendor’s adjoining property and so as to bind the land conveyed. These included a covenant not to construct any building or other erection save one single private dwellinghouse in one occupation with/without garage summer house and usual or reasonable outbuildings.
Such dwellinghouse should be designed and constructed according to plans and general specification reasonably approved by the vendor before building commenced. In particular there were to be no windows which overlooked the vendor’s remaining property or property to the north-west side save for a bathroom toilet or garage fitted with opaque glass, such windows to be hinged at the top and opening outwards for a few degrees only.
The applicants, who did not have a particular development in mind, sought the discharge or modification of the approval covenant on the basis that it was personal to Warfield, who had died. The objector, Warfield’s successor in title, claimed that the purpose of the approval covenant was to enable the owner for the time being of 23 to object to a replacement house at 23a.
The tribunal concluded that the idea in imposing the approval covenant was to give Warfield control over the first building on the plot, to be built soon after the 1962 conveyance. It failed to make provision for the approval of extensions or alterations, for his death or to refer to his successors in title – where other covenants did so refer – which signalled that the covenant was intended to be personal to him.
Since the covenant was personal to Warfield it could be discharged because it was obsolete within the meaning of section 84(1)(a) of the 1925 Act and the tribunal made an order accordingly.
Louise Clark is a property law consultant
