Landowners that own property burdened by restrictive covenants can ask the Lands Chamber of the Upper Tribunal to modify or discharge them. In Re Marshall’s Application [2011] UKUT 69 (LC); [2011] PLSCS 147, the applicants asked the tribunal to modify a covenant not to obstruct a turning area to enable them to comply with the conditions attached to the planning permission for the construction of their home. Without modification, the local authority could force them to demolish part of their property to enable them to park sufficient cars on their land to satisfy the conditions.
A restriction can be modified or discharged if the tribunal is satisfied that: (i) it should be deemed obsolete because of changes in the character of the property or the neighbourhood or other circumstances; (ii) it impedes some reasonable use of the land and either does not give those entitled to its benefit any practical benefits of substantial value or advantage to them, or is contrary to the public interest, and that a monetary payment will provide adequate compensation for its modification or discharge; (iii) everyone of full age and capacity entitled to the benefit of the restriction has agreed, expressly or impliedly, to its modification or discharge; or (iv) the persons entitled to the benefit of the restriction will not be injured by its modification or discharge. The covenant was not obsolete because the applicants had entered into it in 2004, but they sought modification on all the other grounds.
The tribunal was surprised that the applicants had not renegotiated the extent of the turning area in 2008 when they had relaxed a similar covenant, in their favour, to enable their neighbours to sell their house. The applicants explained that they had not understood the importance of the covenant or the implications of breaching it and had not appreciated that the fact that the smaller turning area satisfied planning requirements was irrelevant to the enforcement of the covenant.
Consequently, they ignored the restriction and built their house and garage in a position that made it impossible to comply with the planning conditions without breaching the covenant. They subsequently compounded their error by marking out a turning area that was smaller in extent than the covenanted land and using their driveway as though the reduced turning area were the only area to be affected by the restriction against parking.
The tribunal refused to modify the covenant. It decided that the applicants’ neighbours had not agreed either expressly or impliedly to reduce the turning area. The restriction conferred important practical benefits and the applicants’ neighbours would be injured by the modification.
The tribunal’s comments illustrate its reluctance to assist parties that adopt a cavalier approach to restrictive covenants, but it also took the opportunity to encourage the parties to be less intransigent. It suggested that the applicants could make a further application to confine the covenant against parking to a different area and that their neighbours should reconsider the price they were asking for the modification of the covenant – and recommended alternative dispute resolution to settle the dispute.
Allyson Colby is a property law consultant
