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Stevens v Ismail  UKUT 43 (LC)
The Upper Tribunal rejected two challenges to its jurisdiction to rule on the modification of restrictive covenants under section 84 LPA 1925. The Tribunal rejected arguments that a surrender and re-grant of the relevant lease had taken place and that the covenant concerned was positive, rather than restrictive, in nature.
The applicants were the owners of two separate leasehold flats within the same building (known as the "garden floor flat" and the "hall floor flat"). Their leases were granted in 1980 for a term of 999 years from 24 March 1979. At some point between 1980 and 1998, the garden floor flat was extended onto land which had not been included in the 1980 lease. It was unclear if and when this extension had been approved by the freeholder.
In August 1998, the freeholder of the garden floor flat entered into a deed of variation with the lessees of the flat at that time. The deed granted a new right in favour of the lessees to park a motor vehicle in an area marked on a plan attached to the deed. The deed stated that this plan was to replace the plan attached to the garden floor flat lease. This new plan included the land onto which the garden floor flat had been extended.
The applicants sought to connect their two flats internally, to allow them to be used together as a single dwelling. The applicants applied to the Upper Tribunal for the modification of two leasehold covenants, which prevented them from doing so:
The objector (Mr Ismail) was the leasehold owner of a separate flat within the same building. He challenged the Tribunal's jurisdiction to modify the covenants on two grounds:
This briefing was written by Emma Humphreys with assistance from Dan Shutt.
For more information, please contact Emma on +4402072035326 or firstname.lastname@example.org.