Most restrictive covenants bind land in perpetuity. Consequently, the covenants will continue to bind the land unless and until they are released. Alternatively, the landowner whose land is affected by the covenants can ask the Lands Chamber of the Upper Tribunal to modify or discharge them.
Under section 84 of the Law of Property Act 1925, a restrictive covenant can be modified or discharged if, as a result of changes in the character of the property or the neighbourhood, the covenant is obsolete. Alternatively, a restrictive covenant can be modified or discharged if its continued existence would impede some reasonable use of the land and the covenant secures no practical benefit or it is contrary to the public interest. Restrictive covenants can also be modified or discharged by agreement or where the persons entitled to their benefit will not be injured as a result.
Re Abertawe Bro Morgannwg NHS University Trust’s Application [2009] UKUT 114 (LC); [2009] PLSCS 218 concerned a covenant to erect a building on land and not to use it as anything other than a maternity clinic. The covenant was imposed before the introduction of the NHS, at a time when babies were delivered at home and there was concern about infant mortality. The building became vacant and the landowner decided to sell it to a religious organisation, despite requests to put it to an alternative medical use (to provide publicly funded dental care, which was in short supply in the area).
At first glance, it might have appeared that the covenant was imposed to ensure that the building was put to a specific use. None the less, the tribunal decided that the covenant had been imposed for the benefit of the adjoining land. The tribunal reasoned that the covenant touched and concerned the adjoining land because it prevented the servient landowner from using the building in ways that might adversely affect the adjoining land, which was used as a park.
The tribunal accepted that the character of the property and the neighbourhood was unchanged. However, it was not viable to continue to use the building as a maternity clinic and the restrictive covenant no longer served the purpose for which it had been imposed. Interestingly, the tribunal did not consider whether it would be appropriate to modify the restrictive covenant. It discharged the covenant on the ground that it was obsolete.
The judge acknowledged that this would strip the park owner of the means of preventing the building from being used for purposes that were detrimental to the park. Unfortunately, however, injury caused by the modification or discharge of a restrictive covenant is not relevant where a covenant is being modified or discharged on the grounds of obsolescence.
The case serves as a useful reminder that covenants promoting, or prohibiting, specific uses may be adversely affected by the passage of time. It may therefore be prudent to consider whether any additional restrictions are necessary to preserve the value of land that is being partitioned and sold.
Allyson Colby is a property law consultant
