Landlords Bible : Discharge and modification of restrictive covenants, how applications arise

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DISCHARGE AND MODIFICATION OF RESTRICTIVE COVENANTS

1. How applications arise

Under Section 84 of the Law of Property Act 1925 a person interested in freehold land, or, in certain circumstances, long leasehold land, affected by any restriction, arising under a covenant or otherwise, as to its use or building upon it may apply to the Tribunal to have the restriction discharged or modified. The Tribunal may discharge or modify the restriction if it is satisfied that one or more of the grounds set out in the section are made out; and, if it orders the discharge or modification of the restriction, the Tribunal may award compensation to any person entitled to the benefit of the restriction.

Please note that this is a difficult and technical area of law and the Tribunal strongly recommends that applicants seek legal advice when considering and making an application.

2. The application

An application to discharge or modify a restriction must contain all the information set out in the Lands Tribunal Rules 1996, including an identification of the land which is subject to the restriction and the land which has or may have the benefit of the restriction. The identity of any person known or believed to have the benefit of the restriction must also be set out in the application. The ground or grounds in section 84 on which the applicant relies in seeking discharge or modification must be stated. It is very important to clearly state the reasons the applicant believes that any ground applies.

Plans which identify both areas of land must be included with the application together with a copy of the document which created the restriction, including a coloured copy of any plan mentioned in that document.

Please note that the Tribunal does not have jurisdiction to modify or discharge any covenant that is positive in character. Applications should not include such covenants. Any application that includes positive covenants cannot proceed until the Applicant has submitted an amended application.

Please note that if you do not understand any of the terms used or the requirements under section 84, you should seek legal advice before proceeding with an application.

3. Publication of notices

On receiving the application the Registrar determines what notices of the application are to be given to people who appear to be entitled to the benefit of the restriction. The applicant is directed to give personal notices to such people as can be identified by name and address, and notice by advertisement in respect of all others. The notices set out the substance of the application and require those who claim to be entitled to the benefit of the restriction who object to the application to give notice to the Registrar of their objection.

Please note that an application to the Tribunal under section 84 is not akin to a planning application. Only those who are legally entitled to the benefit of the restriction may object to the application.

4. Notice of objection and admission of objectors

Notice of objection and any claim for compensation must be given in writing to the Registrar within 28 days of the notice of the application. The objector is required to state the basis upon which he/she claims to be entitled to the benefit of the restriction and the grounds of the objection. Where entitlement is not clear, a preliminary hearing may be held to decide disputes regarding who is entitled to object to the application.

5. Unopposed applications

In the case of applications to which no objection has been made, or in respect of which no one has been admitted or found entitled to oppose the application, the Tribunal may, with the consent of the applicant, determine the application without a hearing.

6. Opposed applications

Where objections have been made and not withdrawn, or where the grounds for the application have not been clearly established, an oral hearing will usually be held in order to decide the application.

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