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.

Needless to say, this is often a disappointment to applicants who think that covenants should be fully cancelled. However, the difficulty the LR faces is that this is only possible if it is clear that all the owners of the land who have the benefit of the covenant have joined in the release of it. In practice, it will often be very difficult to establish the precise extent of the land that originally benefited from the covenant, and therefore who must be a party to the release.

It is more straightforward if there is ‘merger’ (ie all of the benefiting land and all of the burdened land has become vested in the same person, with the same legal rights). The only other alternative, of course, is to apply to the Upper Tribunal (previously called the Lands Tribunal) for an order under s84 LPA 1925. See Landnet 20 (September 2009) available on the LR website www.landreg.gov.uk.