Restrictive covenants: modifying the benefit

• Two recent decisions of the Upper Tribunal have considered the question of the extent to which the land benefited by a relevant covenant is required to be the same as the land owned by the person entitled to the benefit of such a covenant.

Restrictive covenants which affect freehold land can often hamper the development of that land. This effect is ameliorated by the jurisdiction of the Upper Tribunal (Lands Chamber) to modify or discharge such covenants. In particular, s 84(1)(aa) of the Law of Property Act 1925 gives the tribunal power to modify covenants where their continued existence would impede some reasonable user of the land and where impeding that user does not secure to persons entitled any practical benefits of substantial value or advantage. Further, s 84(1)(c) authorises modification where such will not injure the persons entitled to the benefit of the restriction. The policy behind s 84(1)(aa) has been said to be ‘to facilitate the