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Restrictive covenants.

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Restrictive covenants.

The editor of this section is Emma Humphreys, solicitor, partner in Charles Russell LLP (www.cr-law.co.uk)

There are two cases this month:
  • An application to modify a covenant containing a density restriction was successful on the basis that the practical benefits to the objector were not substantial.
  • Despite breaches of covenant by previous owners on an estate restrictive covenants continued to bind the Claimant’s land.

Discharge or modification
Ground (aa)

Hennessey v Kent
[2017] UKUT 243 (LC)


The applicant made an application under s84 of the Law of Property Act 1925 to modify restrictions which prohibited more than one house on her land and required approval by her neighbour of any property built. The applicant succeeded in satisfying ground (aa) on the basis that the practical benefits of the density restriction to the objector were not of substantial value or advantage and could be adequately compensated by a money payment.

Relevant statutory provisions

In outline the relevant grounds for modification or discharge of a restrictive covenant in s84(1) and s84(1A) LPA 1925 are:

  • (aa) That its continued existence would impede some reasonable user of land and that it either:

    • s84(1A): “a) does not secure to persons entitled to the benefit of it any practical benefits of substantial value or advantage to them, or
      b) is contrary to the public interest;

      and that money will be an adequate compensation for the loss or disadvantage (if any) which any such person will suffer from the discharge or modification”.

  • (c) “that the proposed discharge or modification will not injure the persons entitled to the benefit of the restriction”.

  • Facts

    The applicant had obtained planning permission to build a replacement house for her property which had been destroyed by fire and two further detached houses to be built in the garden. She sought to modify restrictive covenants imposed in a 1971 conveyance which (i) prohibited more than one dwelling house on the land (“the density restriction”) and (ii) required any such property to be built in acco ... THIS IS AN EXTRACT OF THE FULL TEXT. TO GET THE FULL TEXT, SEE BELOW

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