Restrictive covenants are a common feature in property law, often limiting how a property can be used even many years after they were first imposed.
A recent case, Farrell v Garforth-Bles and Bishop’s Mansions Limited, highlights an important legal principle: changes in planning permission do not automatically override restrictive covenants.
This case provides a useful reminder for property owners, developers and legal professionals dealing with land use restrictions.
What Is a Restrictive Covenant in Property Law?
A restrictive covenant is a legal obligation written into a property’s title that restricts how the land can be used. These covenants are binding and can continue to affect a property long after they were first created.
Section 84 (1)(a) of the Law of Property Act 1925 grants the Upper Tribunal powers to discharge or to modify restrictive covenants.
Background of the Farrell Case
Further to the recent case of Farrell -v- Garforth-Bles and Bishop’s Mansions Limited centred on the issue of a modification of a restrictive covenant.
In the particular facts of the case Mr Farrell had covenanted in 1983 not to use his property other than for private residential or professional offices and also not for undesirable activities, including retail use, as a restaurant/snack bar, or for a noisy trade. The covenant benefited a block of flats at Bishop’s Mansions.
Since the covenant was imposed in 1983 planning categories have changed and Mr Farrell obtained an established use certificate in relation to the ground floor of the property as Class A1 (retail) in 1991.
Tribunal Decision: Is the Restrictive Covenant Still Enforceable?
The Tribunal found that nothing about Bishop’s Mansions had changed to the extent that the purpose of the covenant could not be complied with nor that changes to planning control made it harder to comply with the covenant.
As such, the Tribunal concluded that the covenant was not obsolete and remained in force.
Why the Tribunal Refused to Modify the Restrictive Covenant
The Tribunal also included that the covenant did benefit and protect the block of flats from noise and fumes and also the privacy of the owners/occupiers.
The importance of the case rests with the fact and a reminder that changes in planning control do not alter restrictive covenants.
Legal Advice on Restrictive Covenants
If you are dealing with a restrictive covenant or considering whether it can be modified or removed, it is important to seek legal advice. Understanding how covenants interact with planning law can help avoid costly mistakes and disputes.
The contents of this post do not constitute legal advice and are provided for general information purposes only ■
