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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:
  • Whether a covenant was of substantial value to those objecting to an application for discharge or modification?
  • Whether to award injunction or damages in lieu in respect of a breach of Restrictive covenants?

Modification of restrictive covenant

Demolition of house – construction of flats – substantial value of covenant

RE Theodossiades
[2017] UKUT 461 LC


The applicant sought to modify restrictive covenants which would prevent her from constructing several apartments in place of a house. Taking all factors into account, the Tribunal concluded that the practical benefits to the objectors were not of substantial value or advantage. The Tribunal therefore agreed to modify the covenants to permit the development for which the applicant had obtained planning permission


The applicant had been granted planning permission to demolish a large house and construct a two-storey building comprising six two-bedroom apartments. However, the land was part of six plots that were subject to covenants dating from the late 19th century which restricted the number of houses that could be built and set minimum values for them.

The covenants had resulted in a neighbourhood of 15 high-value, low-density properties, although five of those properties had been built in breach of the restrictions on the maximum number of houses for their respective plots.

The applicant applied for modification of the covenants under section 84 of the Law of Property Act 1925. Three neighbours objected to the development.


Whether the Tribunal should exercise its discretion to modify the restrictions under s.84(1) (aa) LPA 1925, i.e. on the basis that they impeded a reasonable user of land.
Under s84(1A), modification is permitted where the Tribunal is satisfied that:
  • the person who is entitled to the benefit of the restriction does not secure any practical benefits of substantial value or advantage from it; or
  • that the restriction is contrary to the public interest.
For the purposes of section 84(1A), ... THIS IS AN EXTRACT OF THE FULL TEXT. TO GET THE FULL TEXT, SEE BELOW

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