Since August 1977 it has not been possible to create any rent charges, other than ‘estate rent charges’ (Rent Charges Act 1977). There are two types of estate rent charges:

to allow for enforcement of positive covenants: payment of a sum of money under an estate rent charge is one way of ensuring that positive covenants can be enforced against a landowner. But, under s2(5) the amount charged must be nominal – if it is more than nominal, then the rent charge will be void and unenforceable;

The basic principle is that you cannot enforce a positive covenant. But, there is an exception under the ‘burden and benefit’ rule (ie if someone takes a benefit, then they may be bound by the accompanying burden). The classic example is ?Halsall [1957] where a conveyance gave a right to chattel over private roads, and contained a duty to pay a contribution towards maintenance costs. It was held that the buyer could not use the right of way (the ‘benefit’) unless it also accepted the corresponding obligation to pay the maintenance (the ‘burden’).

For a restrictive covenant to be enforceable by a successor in title, there are two requirements: (i) the land benefiting must be identified, and (ii) the benefit must have passed to the person trying to enforce it (by annexation, assignment, or by there being a building scheme).

If a developer faces injunction proceedings because a development is argued to be in breach of a restrictive covenant, then it is possible to apply for a stay of the injunction proceedings, with leave to apply to the Lands Tribunal under s84(1) LPA 1925. For instance, this would be the obvious route if there had been a radical change in the neighbourhood so that it seemed highly likely that the Tribunal would vary or discharge the covenant.

Insurance may seem the easy way of side-stepping the potential problems raised by a restrictive covenant. But, do bear in mind that:

Most people will think of an ‘annoyance or nuisance’ covenant as applying solely to activities carried out on a property (eg disturbance coming from a building). But, that is wrong, since the covenant can also cover the erection of the building itself.

How do you get rid of a troublesome restrictive covenant? The first thought may be to apply under s84(1) LPA 1925 to the Lands Tribunal, for the discharge or modification of the covenant. But, that is a relatively expensive (and time consuming) process. Moreover, the tribunal will not be sympathetic to an application that does not have planning consent, since otherwise it will not be able to see precisely what is proposed and the effect on other properties (see re Davies [2006]).

It is only rarely that the Land Registry can release (ie cancel) a restrictive covenant. Usually, what happens is that the LR will merely make an entry on the register saying that ‘by a deed dated... the covenant contained... were expressed to be released’. Thus, the LR is confirming that they were ‘expressed’ to be released but it is not guaranteeing that they were released.