Tribunal discharges 'obsolete' restrictive covenant affecting land despite strong opposition

A brief overview of a recent case in which a restrictive covenant was discharged by the Upper Tribunal because the benefit it secured was personal to the original covenantee and the covenant's purpose could no longer be fulfilled.

Restrictive covenants are a mechanism by which the sellers of freehold property can seek to limit the ways in which the property being sold is used or developed in the future. Typically, they are imposed to preserve or maintain the character of a particular neighbourhood or area, or to secure some kind of collateral advantage for the party with the benefit of the covenant.

A landowner wishing to free themselves from the effect of a restrictive covenant may apply to have it discharged pursuant to Section 84(1) of the Law of Property Act. In order to do so, one of the following grounds must be made out:

1. The covenant is obsolete (s.84(1)(a));
2. The covenant impedes some reasonable use of the land (s.84(1)(aa));
3. The covenant has been discharged by agreement (s.84(1)(b));
4. No injury will be caused by the discharge (s.84(1)(c)).

In the recent case of Ball & Anor v Fulton [2025] UKUT 135 (LC), the Upper Tribunal (UT) was asked to discharge a restrictive covenant on the basis that the covenant in question was personal to the original covenantee and, because the covenantee had since disposed of her interest in the property, the covenant was now obsolete pursuant to s.84(1)(a).

What was the UT asked to decide?

To understand the issues before the UT, it is helpful to consider the wording of the specific covenant that was the subject of the discharge application:

"Not to erect on the land hereby conveyed any building other than a dwellinghouse 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 party who was objecting to the discharge application argued that the term "Vendor" should include both the original covenantee and her successors in title. The reasons they presented to the UT included: the potential impact of development on the land benefitting from the restriction, the way in which the covenant fit with other obligations in the relevant conveyance, and a previous decision of the court (in a different case) that "Transferor" should be read to include successors in title.

However, the UT held that, notwithstanding the arguments put forward by the objector, most of the existing case law pointed towards the narrower reading of "Vendor", and that, upon a true reading of the conveyance in question, successors in title were not included. In particular, the UT put significant weight on the fact that, where successors in title were to be included, the conveyance expressly provided for this – and that the relevant building works would have been completed soon after the conveyance, such that obtaining approval from the Vendor was intended to be a discrete and contemporaneous event.

Comment

Ball & Anor v Fulton is a reminder that restrictive covenants can be successfully challenged, and that, when construing them, a careful and considered reading of both the covenant and the surrounding context is necessary.

If a landowner is thinking about applying for the discharge of a restrictive covenant, there are several issues they ought to consider, including: whether the covenant in question prohibits the proposed activity, who currently has the benefit of the covenant (if anyone), and whether any of the grounds for discharge are likely to apply.

In each case, a thorough analysis of the issues should be carried out, before proceeding with either an application to discharge or an objection. Doing so will likely save time and costs, whilst preserving any tactical advantages that might be available.

Whether you benefit from a restrictive covenant, or your property is burdened by one, if you would like advice in relation to your options, please do get in touch and we would be glad to assist.