When is a restrictive covenant obsolete?
In Ball & Anor v Fulton [2025] UKUT 135 (LC) the Upper Tribunal was asked to consider whether a restrictive covenant had become obsolete under section 84(1)(a) Law of Property Act 1925.
Mr and Mrs Ball's property was, through a conveyance dated 14 September 1962, subject to the following covenant:
'Not to erect on the land hereby conveyed any building other than a dwelllinghouse which shall be a detached house of a general design and constructed of such types of materials and according to such plans and general specification as shall be submitted to and receive the reasonable approval of the Vendor such approval to be obtained before the building of any house on the land is commenced.'
The Ball's asked the Upper Tribunal to remove the covenant as it had become obsolete and it did not prevent the purchaser from building a house on the plot sold, it required submission of the plans to Mr Warfield for approval before the purchaser started building on the land. Mr Warfield did in 1992 and the covenant was now obsolete.
Mrs Fulton, who is the current owner objected and it was argued the term 'the Vendor' included Mr Warfield's successors in title. Section 84(1)(a) Law of Property Act 1925
- The Upper Tribunal shall (without prejudice to any concurrent jurisdiction of the court) have the power from time to time, on the application of any person interested kin any freehold land affected by any restriction arising under covenant or otherwise as to the user thereof or the building thereon, by order wholly or partially to discharge or modify any such restriction on being satisfied-
- that by reason of changes in the character of the property or the neighbourhood or other circumstances of the case which the Upper Tribunal may deem material, the restriction ought to be deemed obsolete
The Tribunal concluded there was no reference to successors in title in this particular covenant and successors were expressly mentioned in other clauses. The covenant was personal to Mr Warfield and can be discharged because it is obsolete within the meaning of section 84(1)(a).
This case illustrates that a restrictive covenant may be discharged if it is personal to an individual who no longer holds an interest in the property and therefore renders the covenant obsolete.
