Restrictive covenants: Application to modify fails for lack of evidence

An application for modification of restrictive covenant to allow an extension to a house was recently refused by the Upper Tribunal (Lands Chamber) as the restriction secured practical benefits to the objector, in the decision of Tega Awinoron and Edward Edirin Otomiewo v. London Borough of Barking and Dagenham [2025] UKUT 139 (LC).

Facts

The applicants were the owners of 16 Urswick Road (“the Property”) and they sought modification of a restrictive covenant to enable them to retain a porch and boundary fence erected in 2021 in breach of covenant. The objector was the freehold owner of adjoining property, 18 Urswick Road (“18”) which it let out on a tenancy.

The application was made during the course of injunction proceedings. By the date of the trial of this matter, the objector had obtained an injunction in the County Court, some 7 months prior, requiring demolition of the works and restoration of the communal porch to its original condition.

The relevant covenant was contained in a Transfer dated 25 October 1982 between the original purchaser and the objector. It provided that the applicant should not at any time suffer or permit the exterior of the Property or any part thereof to be altered or added to without the previous consent in writing of the objector. The Property had been purchased by the applicants on 11 December 2015. The terrace where the Property was located included three pairs pf properties with shared open porches and undivided front gardens.  The applicants had suffered from anti-social behaviour by their neighbours with whom they shared the front porch and saw that some other houses in the estate had added on private porches. They began work in July 2021 and received a telephone call from the objector informing them that they required consent for the works.

There was then some confusion and miscommunication between the parties. The applicants thought that the relevant consent they required was planning and they obtained a Lawful Development Certificate. By September 2021 the works were complete and the following July the objector had obtained an injunction in respect of the breach of covenant.

Issues

The Applicants made the application to modify the restrictive covenant on ground (a) (that the restriction ought to be deemed obsolete) and ground (aa) (that the restriction would impede some reasonable user of the land).

In respect of ground (a) and obsolescence, it was argued that as the covenant as imposed over 42 years ago and more than 50% of the original housing stock had been sold by the objector it was no longer possible to fulfil the purpose of the covenant.

In respect of ground (aa), it was argued that the user was a reasonable one and that modification to permit the works would cause no loss of value to the objector’s reversionary interest and they had adduced no evidence to demonstrate such a loss.

Decision

The Tribunal found that the application failed on ground (a) although the answer on obsolescence was not clear-cut. It was undisputed that the original purpose of the covenant was preserving the character of the neighbourhood. However, the ownership structure had changed over the 42 years since the covenant was imposed and in locations and at times beyond the control of the objector. Whilst the objector could have chosen to enforce the covenant over any number of properties it chose not to do so and thus had allowed the character of the neighbourhood to change over time. Therefore, the original purpose of the covenant in that regard could no longer be achieved.

However, there was a secondary purpose to the covenant which was assisting the objector to guard against changes to the character and amenity of its own properties. The objector did enforce covenants where it owned adjoining property. The applicants in this case had gone too far in carrying out works to the objector’s property which was an act of trespass. In addition, in erecting a boundary fence they had deprived their neighbours of the benefit of shared access along a communal path on the front garden. Given that the objector demonstrated that it continued to take enforcement action in similar situations, the secondary purpose of the covenant could still be achieved. Overall, the covenant was therefore not obsolete.

With regard to ground (aa), given the conclusions on obsolescence the Tribunal found that the ability to guard against unauthorised changes to its retained property was a practical benefit to the objector. The Tribunal had no evidence as to whether the practical benefit was of substantial value and no evidence as to whether money would be an adequate compensation from the loss that would arise from modification. However, even if the benefit was not substantial the Tribunal observed that it would only have jurisdiction under section 84(1) to modify the covenant if money would be adequate compensation for any loss suffered. The lack of evidence from either party in that regard as well as the conclusions drawn by the trial judge in the injunction proceedings, lead the Tribunal to conclude that this was a rare example of where the advantage of a practical benefit could not be measured in monetary terms. Therefore, the Tribunal did not have jurisdiction to modify the covenant.

Notwithstanding the fact that the Tribunal did not have jurisdiction, the Tribunal went on to consider the objector’s argument that the Tribunal should refuse to exercise its discretion because the breach had been cynical in nature. The Tribunal considered that the fact that the applicants applied for a certificate of lawfulness as soon as they were told they needed consent pointed to a misunderstanding rather than opportunism. The Tribunal observed that it was unfortunate that the objector’s approach to estate management in this case did not include more informed engagement with the applicants at the outset so that they could have understood properly the nature of the breach they were about to commit.

Comment

This case is of note because of the Tribunal’s determination that it did not have jurisdiction given the lack of evidence on whether money would be adequate compensation for the modification. No doubt the related injunction proceedings which had already been determined were a factor which laid heavily in the Judge’s mind. Despite that finding, the criticism made of the objector’s conduct, rather than the applicants’, is also a reminder that conduct on both sides is a relevant consideration on the question of discretion.

Originally published on Property Law UK.