Section 84

We think that valuation for the modification or discharge of restrictive covenants fits very neatly with our specialisms. These cases are rarer, but both Richard and Henrietta have had involvement in a number of restrictive covenant cases.  

What is a restrictive covenant? 

A restrictive covenant is a binding obligation attached to land — typically preventing the owner from using it in a particular way. Common examples include restrictions on building, on the type of use permitted, or on subdivision of a property. Restrictive covenants can be imposed by one piece of freehold land on another or can arise in a long lease. 

Where a restrictive covenant prevents a proposed development or change of use, the owner of the affected land may apply to the Upper Tribunal (Lands Chamber) under section 84 of the Law of Property Act 1925 for the covenant to be discharged or modified. 

Section 84 of the Law of Property Act 1925 

The Upper Tribunal has power to discharge or modify a restrictive covenant where it is satisfied, among other things, that: 

• the restriction ought to be deemed obsolete by reason of changes in the character of the property or neighbourhood; or 

• the continued existence of the restriction would impede some reasonable user of the land, and either does not secure to the persons entitled to its benefit any practical benefits of substantial value or advantage, or is contrary to the public interest; or 

• the proposed discharge or modification will not injure the persons entitled to the benefit of the restriction. 

Where the Tribunal decides that a covenant should be discharged or modified, it may direct the applicant to pay compensation to the person who loses the benefit of the covenant. The current state of the law is that this compensation is most likely to be assessed by reference to the diminution in the value of the land which is losing the benefit of the covenants. 

Diminution in value is a concept at the heart of our work — familiar to us from our specialism in dilapidations and leasehold enfranchisement.  

Our role

We act for both applicants and objectors. Our work typically includes: 

• advising on diminution in value; 

• preparing valuation evidence for Upper Tribunal (Lands Chamber) proceedings; 

• acting as expert witnesses; 

• working alongside solicitors and barristers throughout.