Restrictive covenants can limit the use of land and prevent future development, some have little relevance but others can create a real problem for those seeking to develop. They are often historic but will have been placed on the property for an intended purpose, the question then being whether that intended purpose can still be protected or whether it is justifiable for it to be removed or modified if it is preventing development.
Having a detailed understanding of the legal and valuation principles which apply to these covenants has allowed us to deliver successful outcomes for landowners and developers through negotiation.
Whilst commercial negotiations between the parties may result in agreement this is not always the case and the burdened party can apply to the Tribunal to lift or modify a covenant under Section 84 of the Law of Property Act 1925. Parties affected should be extremely careful when approaching these matters to avoid prejudicing their position should the matter proceed to Tribunal. The Tribunal will require evidence to be provided in relation to valuation issues as well as factual circumstances associated with the context for the request to modify/lift the covenant, and as to potential impacts on the property or neighbouring properties by way of justification.
In one example, Chesters Harcourt, advising a landowner seeking to develop their land were able to successfully demonstrate that a covenant ought to be lifted by virtue of a change in the character of the neighbourhood. In another case, Chesters Harcourt, advising a landowner, were able to successfully demonstrate to the Tribunal that the benefit of a covenant continued to serve a useful purpose and that no attempt to modify or lift the covenant should be accepted.
Each case will turn on its own facts and merits and obtaining the right advice from the start can potentially avoid an expensive and drawn out process.