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Covenant prevents couple building new house in their garden

October 28th 2021

A couple have been prevented from building a new home in their garden because of a covenant dating back 60 years.

Stephanie Johnson Senior Associate Solicitor reports on this recent case.

Covenants are promises or conditions often inserted into title deeds that affect or limit how a property can be used. They are legally binding on whoever later buys the property unless overturned by a court.

The couple in this case owned a house in a cul-de-sac at the end of a lane. They had been granted planning permission to build a new house within their garden. However, restrictions had been imposed by a covenant in 1960 that prevented any building on the land at the end of the cul-de-sac other than for a garden shed, summerhouse, greenhouse, conservatory or garage.

The couple sought to discharge the restrictions under the Law of Property Act 1925 on the basis that the character of the neighbourhood had changed, rendering the restrictions obsolete. Their case was that there had been substantial development of properties in the lane, from seven to 22 residential units since 1960, including a block of flats.

Their application was opposed by some of the other property owners in the cul-de-sac.

The Upper Tribunal (Lands Chamber) rejected the application. It accepted that there had been

a significant increase in the number of homes since the restrictions were imposed in 1960.

However, most of the increase was attributable to the block of flats, which had been sensitively designed to resemble a large mansion in keeping with the original style of the area, and it had not had the pronounced adverse impact on the amenity of the objectors’ properties that the couple suggested.

Nor could it be said that the restrictions achieved nothing now in terms of the amenity of the land that benefited from them. They achieved what they had always achieved, which was the protection of the amenity of one of the properties at the end of the cul-de-sac from residential development to the west.

The case illustrates how important it is to be aware of all covenants and other potential legal problems before committing to buy a property.

If you would like more information about the enforceability of covenants and how they can be discharged please contact Stephanie on 01228 516666 or click here to send her an email.

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