Obsolete Restrictive Covenants

A restrictive covenant is a covenant or agreement which affects how an owner can use his land: Such covenants may last indefinitely, but may become obsolete or onerous owing to (for example) the passage of time or changes in law or policy. The Upper Tribunal (Lands Chamber) has power to modify or discharge a restrictive covenant if specified conditions are met, e.g. where it serves no practical purpose or where it is obsolete, for example owing to passage of time and consequential change in circumstances (s.84(1)(a), Law of Property Act 1925).

In the case of (1) Awinoron (2) Otomiewo v Barking and Dagenham LBC [2025] UKUT 139 (LC) the respondent had been the freehold owner of a housing estate. With the enactment of the right to buy (Housing Acts 1980 and 1985), some of the properties had passed into private ownership. One such property was owned by the applicants. It was subject to a restrictive covenant which prohibited them from altering or adding to the exterior of the property without first obtaining the written consent of the respondent. In breach of covenant, the applicants had erected a covered porch at the front of their property. The respondent retained the neighbouring property and obtained an injunction requiring the demolition of the porch. The applicants then applied to vary or discharge the covenant, contending that it was obsolete and/or served no practical purpose.

The application was dismissed. One purpose of the covenant was to ensure that the respondent was able to guard against changes to the character and amenity of its retained properties. Here, it retained the neighbouring property and the effect of erecting the porch was that its tenants in the neighbouring property now found it more difficult to access their front door so that it could not be said that the covenant was obsolete.

For advice on restrictive covenants and property law, please contact Oliver Kew at o.kew@hewetts.co.uk

Published on 23/07/2025