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Recent case sees modification of restrictive covenant

28/06/2019

A recent case has seen a restrictive covenant modified in order to permit access to a garage on the applicant’s property. Lodders’ Real Estate partner, Alastair Frew, explains the significance of this ruling.

In the case of Green v Hayes Hall [2019] UKUT 174 (LC), a restrictive covenant on Mrs Green’s title prohibited any use of the land between her property and Poolbrook Road, for direct vehicular access to and from the property. This restriction resulted in Mrs Green having to travel a further half a mile to access her property from the rear.

Mrs Green applied to the Upper Tribunal (Lands Chamber) (UT), for direct access to her property, including an extensive modification to allow access also to a potential development site on a nearby sports field. As beneficiaries of the restriction, Mr and Mrs Hayes-Hall, the owners of nearby Littlewood House (the former home of Dame Barbara Cartland), objected to Mrs Green’s application on the grounds that the modification would create traffic from the main road to the potential development site.

The outcome

The UT granted Mrs Green a limited modification of the existing restrictive covenant, allowing her direct access to her garage and turning area from Poolbrook Road, but denied her application for more extensive works to allow her access via the development site.

The UT did not accept that the character of the neighbourhood had changed sufficiently to justify the more extensive modification requested by Mrs Green. It did, however, agree that it would be reasonable to allow some increase in traffic even if this caused detriment to the owners of Littlewood House.

Mrs Green and Mr and Mrs Hayes-Halls each accepted the ruling with no further objections.

Significance of the case

This case highlights the Court’s ability to modify or overturn restrictive covenants, but only to the extent in which the Court considers to be reasonable. As was the case here, you cannot expect the Court to give you everything that you want, but modifications can be made to existing restrictions to allow for reasonable changes.

It is worth bearing in mind that restrictive covenants will only be modified or overturned if the applicant can show that the modification will bring significant practical benefits, which outweigh any detriment to the other party. Lodders’ Real Estate team can offer you the support and advice that you need when it comes to registering an application for changes to a restrictive covenant.

If you are considering submitting a proposal, please contact Alastair Frew on 01789 206117 or via email.

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Get in touch

For more information, please contact Alastair Frew on 01789 206117 or via email.