Restrictive Covenant Modification Enables Home Development

Restrictive covenants often date back many years and a delicate balance sometimes has to be struck between their enforcement and the public interest in efficient use of the increasingly scarce supply of suitable land.

In a recent case, the Upper Tribunal (UT) had to balance the public interest against the rights of the beneficiaries of a covenant when considering whether the covenant should be modified to enable the development of a new home.

The case concerned an urban terrace of six houses. The original purchasers of the properties had covenanted not to erect any permanent or temporary structures on the land without the consent of the vendor. The owner of a property at the end of the terrace had obtained planning consent to build a new house on adjoining land but the covenant, which dated back to 1964, stood as an obstacle in his path. The owners of three other houses in the terrace had objected to his proposals.

In ruling on the dispute, the UT found that the covenant brought a practical benefit to residents of the terrace in that it prevented encroachment onto a shared vehicular right of way. In those circumstances, the covenant was not obsolete and the UT declined to discharge it. However, it granted an amendment to the covenant that would enable construction of the new house in a manner that guaranteed the integrity of the right of way.