Releasing 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, owing to the passage of time or changes in law or policy, may become obsolete or onerous. The Upper Tribunal (Lands Chamber) has power to modify or discharge a restrictive covenant if specified conditions are met, e.g. where it is obsolete owing to passage of time and consequential change in circumstances s.84(1)(a), Law of Property Act 1925.

In the case of Ball v Fulton [2025] UKUT 135 (LC) Mr and Mrs Ball owned a property subject to a restrictive covenant. The covenant was from 1962 and provided that no further development could take place on the land without the consent of Mr Warfield, the original owner of the land now owned by Mr and Mrs Ball, as well as of other neighbouring land, who had died in 1992. Mr and Mrs Ball applied to the Upper Tribunal to discharge the restrictive covenant on the grounds that it was obsolete because it was a personal right limited to Mr Warfield and was not a right which survived for his successor in title or anyone else. Mrs Fulton was the owner of neighbouring land which she had also acquired from Mr Warfield; she contended that she was entitled to enforce the covenant as his successor in title.

The Upper Tribunal found for Mr and Mrs Ball. The requirement to obtain the consent of Mr Warfield was not expressed to apply to his successor in title and was therefore not now vested in Mrs Fulton. On the death of Mr Warfield, the covenant became obsolete and was accordingly discharged.

For land and property advice please contact Oliver Kew at o.kew@hewetts.co.uk

Published on 18/06/2025