Discharge and Modification of Restrictive Covenants

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Discharge or modify covenants

Section 84 of the Law of Property Act 1925 grounds a jurisdiction to discharge or modify restrictive covenants affecting freehold land.

Section 84(1) gives the court a very useful power to declare whether any land is subject to the burden of a restrictive covenant. It thus provides a simple method of determining whether a burden actually runs in a given case.

S84(2) gives the Upper Tribunal (Lands Chamber) the power to discharge or modify restrictive covenants.

  • S84(2) is quite important as the perduring (i.e. enduring) nature of restrictive covenants (and land!) means that they can impose restrictions on the use of land that may eventually become outdated or even detrimental to the good management of the property.
  • For example, a restrictive covenant against building may impede the development of land for social housing or may obstruct the economic regeneration of a depressed industrial area. So, the court may use their power to discharge/modify the covenant in this situation.

Criteria to discharge/modify

There are four general grounds for discharging or modifying a covenant (i.e. the Upper Tribunal will only exercise its jurisdiction to discharge/modify if the claimant can make out one of the below four grounds):

  1. The covenant is obsolete by reason of changes in the property or area;
  2. The continuance of the covenant would obstruct reasonable use of the land;
  3. The person entitled to the benefit has agreed to its discharge;
  4. The discharge/modification would not impact on the person entitled to the benefit.

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