1) There has been an agreement that it should be discharged or modified.

2) The covenant is, in effect, obsolete.

3) The covenant restricts reasonable use of land, confers no practical benefit of substantial value or advantage, and the loss of the covenant can be compensated in money.

4) No injury would be caused to those entitled to the benefit of the covenant.

A recent case illustrates how this can work in practice. A restrictive covenant was imposed in 1997, when part of a property was sold; the covenant said that no ‘permanent building or structure’ could be built on the land without the transferor’s consent. The subsequent owners of the property wanted to build a large wooden shed, but the transferors insisted on a £20,000 payment. The owners refused to pay, and erected a shed – which they subsequently removed following court proceedings. Then, however, they applied to the Lands Tribunal under s84(1). Referring to the four grounds above:

1) There was no evidence that the transferors had agreed to any modification or discharge.

2) They could not argue the covenant was obsolete (there will have been no changes in the neighbourhood since 1997).

3) They did successfully argue that the covenant conferred no practical benefit of any substantial value or advantage (and the proposed shed was a ‘reasonable use’ of the land).

4) They also won on the basis that no injury would be caused to the transferors. An inspection by the LT showed that the shed would hardly be visible from the transferor’s property.

The end result was that the covenant was modified to allow the erection of the large shed. Whilst the case is of no great significance, it does illustrate the way that s84(1) can be used in practice. In particular, it is a reminder to those who hold the benefit of a restrictive covenant that they cannot simply assume that it will remain valid (even if the covenant was only imposed a decade ago). Crowe v Massey [2008] (LP-34-2006) .  © Practical Lawyer