Restrictive covenant not discharged purely to 'clean up' a title (Re Evans)

When purchasing a home, you should be aware of restrictive covenants affecting the property, to avoid costly mistakes. At Johnson Astills, we will ensure that you know exactly what you can and cannot do with your property taking into consideration recent case law. The decision in Re Evans [2018] has illustrated that the Upper Tribunal will refuse to discharge/modify a restrictive covenant where the sole purpose of discharge is to ‘clean up the title’.

The Facts

Mr Evans sought the discharge/modification of three restrictive covenants burdening his land to allow the construction of a new detached residential dwelling in accordance with a detailed planning consent.

What is the law in this area?

A person with an interest in freehold and certain leasehold land can apply to the Lands Chamber of the Upper Tribunal (UT) for a restrictive covenant to be discharged or modified. The UT must be satisfied that one of the statutory conditions is satisfied. Two of the conditions were relevant in this case:

• Due to changes in the character of the property or neighbourhood or other material circumstance, the restriction ought to be deemed obsolete (original purpose no longer be served)
• The covenant would impede some reasonable user of the land for public or private purposes unless modified.

What were the restrictive covenants?

The first covenant was not to build beyond a building line on a plan.

There were no details of the second covenant which was in a Conveyance dated 1901.

Although referred to in the charges register to the title of Mrs Evans property, neither the original conveyance nor a certified copy or examined extract were produced on first registration and, despite efforts by the Land Registry and Mr Evans, no documentation has been traced.

The third covenant was not to erect anything other than a fence or wall, not exceeding 6 feet, on any part of a strip of land which lay between Mr Evans property and the objectors’ property.

What did the Upper Tribunal decide to the first two covenants?

The objectors had no issue with the modification or discharge of the first two covenants. The Upper Tribunal modified both to allow for the development permitted by the planning permission or any renewal of it. The Tribunal was satisfied that all reasonable steps had been taken to establish specifically what the second restriction was. It would be wrong for the Tribunal to discharge it without the knowledge of its affect. However, in light of the fact it was now over 100 years since it had been applied, and no evidence has been produced to suggest that the objectors or anyone else had raised issues on the matter during the 36 years that the land had been in Mr Evans Family, the Upper Tribunal was confident that the restriction was obsolete, to the extent that it might impede the proposed development.

What did the Upper Tribunal decide as to the third covenant?

The Upper Tribunal was not prepared to discharge the third covenant. The objectors argued that there was no need to have the restriction discharged because, having obtained planning consent, Mr Evans was not being prevented from making reasonable use of the land. The Upper Tribunal decided that the restriction was not obsolete as it continued to provide protection for the objectors from a possible interference with light or outlook, and it did not in any event impede some reasonable user of the land as Mr Evans was able to build to the full extent he wished without infringing the covenant.

Practical Implications

The result in the case demonstrates that the Upper Tribunal will follow the letter of the statutory grounds for discharge or modification of a restrictive covenant. It will not discharge a covenant purely to clean a title. The decision is also a useful indicator of when the Upper Tribunal will be prepared to discharge an unknown covenant. Here the relevant covenant had been imposed over 100 years ago and no objections were evidence in the last 36 years. 

Our Johnson Astills Conveyancing Team in Leicester and Loughborough are happy to assist if you are buying or selling a house.

If you require assistance or further information, please contact our Johnson Astills Conveyancing Team on 0116 2554 855 (Leicester) or 01509 610 312 (Loughborough).