Interpretation of covenants

Interpretation of covenants/applications to modify restrictive covenants

Covenants are contractually binding obligations that apply to land. They frequently form part of disputes between neighbours as they are intended to restrict the use of one property relative to another.

In particular, if development is proposed the continued validity of them and the ability of the owner of a property to enforce them against his neighbour can form an important part of any dispute between parties.

Covenants can be restrictive (also known as negative covenants) for example, a prohibition on using land other than for the purpose of a single private dwelling or they can be positive, which obliges the covenantor (the person giving the covenant) to spend money to do something, for example, to erect and forever maintain a boundary fence.

Between the original contracting parties, this distinction between the two is not of great importance but the distinction is important when considering how covenants bind or benefit successors in title. This is because of the different way that restrictive and positive covenants are treated, in that restrictive covenants have a greater effect upon the successors in title of the land burdened by the covenant. It is therefore important to distinguish between the two. If the matter cannot be agreed, covenants are ultimately enforced by the grant of an injunction by the court.

An early step that needs to be taken in any potential issue involving the enforcement of the covenant where successors in title are involved is to check that the covenant remains effective. The court will only enforce the covenant for the benefit of protected land where the covenant touches or concerns that land.

We are experienced of the need for initial careful consideration of the term of the covenant before moving on to the question of whether the covenant can be modified or discharged. Modification or discharge of covenants is governed by the Law of Property Act 1925 (Section 84) which allows a party to apply to the Upper Tribunal to modify or discharge a covenant. It should be noted that the court has the power to declare whether a covenant binds land and what the extent of that restriction is as well.

We have had considerable experience and much success in modifying/discharging covenants before the Upper Tribunal (formerly known as the Lands Tribunal).