Can a restrictive covenant be removed?
For prospective land or property purchasers, it may be possible to speak to the vendor or ‘successor in title’ with a view to having any restriction lifted.
It is important first to find out who has the ‘benefit’ of the covenant, which will typically be the landowner. However, in some cases, this may have passed to another entity or business. If you can agree to have the covenant removed, a ‘Deed of Release of Restrictive Covenant’ should be drawn up and signed by the dominant and servient owners.
In the situation whereby a restrictive covenant is in place, but the beneficiary is unknown, it cannot be enforced, or it is simply unreasonable (which is especially the case if the reason for the restriction is no longer in existence), it may be possible to request permission to have the restriction removed or modified, by applying to the Upper Tribunal (Lands Chamber).
Section 84 of the Law of Property Act 1925 states the Lands Chamber has the legal discretion to discharge or modify most restrictive covenants affecting land but not all. The tribunal will seek to determine if:
- The restriction ‘ought to be deemed to be obsolete’ or;
- ‘The continued existence thereof would impede the user of the land for public or private purposes, or, as the case may be, would unless modified so impede such user’, and;
- The beneficiary consents to the discharge or change, and;
- If there will be damage to the beneficiary due to the loss or change of the covenant.
How can I remove a restrictive covenant?
It is, however, important to understand that the current beneficiary may object to any loss, which may result in the applicant being required to pay compensation.
If you are considering undertaking work to land or a property currently covered by a restrictive covenant, it is recommended that before doing so you seek advice from a legal property specialist who can advise you. Don’t assume that a covenant will be removed in your favour, and you may be required to undo all of the work completed. In addition, the application process to have a restrictive covenant modified or removed can take considerable time (potentially 18 – 24 months).
Restrictive covenants can impose considerably on the use and enjoyment of land and property, but by seeking from the outset to understand if any exist, an objective decision can be made before proceeding with the purchase. It is entirely possible that any seller will be keen to make changes in return for the successful sale of their land or property. If it is not possible to have restrictive covenants lifted as a condition of sale, or you are already subject to such conditions (and have not already been in breach), you can put in place specific indemnity insurance to provide financial protection in case you do find yourself inadvertently in breach of the covenant, and facing a bill for the removal of work, damages, and legal costs.
Regardless of your context, whether in breach, seeking to purchase, or wishing to challenge an existing restrictive covenant, due to the potentially costly implications, your best interests will be served by seeking the guidance and support of a specialist property Solicitor with the necessary skills, knowledge, and experience. Not only will this protect your financial interests, but it will also afford you the best outcome and, ultimately, peace of mind.
Guillaumes, based in Weybridge, Surrey, have a dedicated team of property solicitors knowledgeable in restrictive covenants. To seek objective and impartial legal advice, get in touch with us today.