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Introduction to Restrictive Covenants (Freehold Land)

Document Cited authorities 2 Cited in Related
Vincent
AuthorWilliam Webster/Robert Weatherley
Pages237-240
PART IV
RESTRICTIVE COVENANTS (FREEHOLD LAND)

Chapter 23


Introduction to Restrictive Covenants (Freehold Land)

23.1 This Part is concerned with restrictive covenants in the case of freehold land which interfere with the use and development of such land. The function of restrictive covenants is to enhance the market value, residential amenity or neighbourhood characteristics of land which enjoys the benefit of such restrictions, which impact on the use of the burdened land. They are a valuable tool in the hands of landowners who either genuinely wish to prevent or control development on neighbouring land or who merely seek to profit from the very existence of restrictions which may have only a trivial impact on the amenity or use of their own land, and for whose release or modification a ransom must be paid if permitted development is to take place, at least without recourse to the jurisdiction contained in section 84 of the Law of Property Act 1925, which confers a power on the Upper Tribunal (Lands Chamber) (UTLC) to discharge or modify restrictive covenants affecting land.

23.2 Restrictive covenants evolved in an era when there were no planning controls and where there was a necessity to impose limits on unhindered growth in urban areas in order to preserve the environment and to safeguard the characteristics and amenities of those properties (or the commercial interests of landowners) to whom the benefit of such covenants had passed. Many older covenants are either obsolete or restrict reasonable development of the burdened land. Sometimes restrictions found within building schemes are unnecessarily intrusive and to which objection may sensibly be taken. This Part also deals with covenants which are positive in nature which do not run with the land, and to development or building schemes where restrictive covenants form a type of local law in the case of larger estates whose object is the maintenance of the character of the neighbourhood.

23.3 The question begs as to whether there should even be a place for restrictive covenants and their complex system of private controls over the use of land in a modern society or whether debates over land use and the protection of the local environment should...

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