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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)

Modification or discharge

Substantial value

Stafford Flowers v Linstone Chine Management Company Limited
[2017] EWCA Civ 202

Summary

The Upper Tribunal had been entitled to find that the Respondent’s ability to prevent the Appellant’s proposed full time use of his property constituted a practical benefit of substantial value or advantage since the discharge of the covenant would otherwise be “the thin edge of the wedge” leading to a change in the character of the site.

Relevant statutory provisions

In outline the relevant grounds for modification or discharge in s84(1) LPA 19925 are:

(a) that by reason of changes in the character of the property or the neighbourhood, or other circumstances of the case which may be deemed material, the restriction ought to be deemed obsolete.

(aa) that its continued existence would impede some reasonable user of land and that it does not either—
  • secure to persons entitled to the benefit of it any practical benefits of substantial value or advantage to them; or
  • it 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 (see s84(1A)).
(c) that the proposed discharge or modification will not injure the persons entitled to the benefit of the restriction.

Facts

The appellant (O) was the owner of a holiday bungalow (“the Property”) forming part of a wider estate of holiday homes. There were over 250 bungalows on the estate. The respondent (M) was the management company and the members of the company are the bungalow owners. The Property was held subject to a restrictive covenant:
    "not to use the land or the bungalow other than as a holiday bungalow for leisure purposes only an ... THIS IS AN EXTRACT OF THE FULL TEXT. TO GET THE FULL TEXT, SEE BELOW

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