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Restrictive Covenants

Have you ever noticed that there are no new buildings on Leicester Square? This is because of the Court’s decision in a very old case by the name of Tulk v Moxhay [1848]. Although the judgment was given in 1884, the restrictive covenants, which prevent building on Leicester Square are still upheld; and we are grateful - imagine an ugly new build going up in the middle of our beautiful, historic Leicester Square.

Not all restrictive covenants on land are as much of a blessing as the one mentioned above. Most of the time restrictive covenants on land are a curse and when they are well drafted they are difficult to get past. The Law of Property Act 1925 contains a clause which allows for the release of land from restrictive covenants in certain circumstances.
Section 84 of the Act allows for restrictive covenants to be released or modified if a change in the character of a neighbourhood means that the covenants no longer have the effect intended, or if the covenant hampers a reasonable user of the land.

Top tip: Although remedy is available via Section 84, the process is long and unpredictable. The process involves having to contact any party benefiting from the covenant if you want the covenant removed. This could alert parties of the restriction which they may not have known they have the benefit of. Think carefully before going down this path.

For further Commercial Property advice, please contact Chris Sykes Director and Head of Commercial Property and Enfranchisement.