Article by Matthew Smith: Modifying Restrictive Covenants: Dormer Windows, Loft Conversions and Extensions
Park Square BarristersThe Problem
A frequent problem encountered by homeowners when they seek to structurally change their property is restrictive covenants. Whilst they will have permitted development rights and even planning permission to build, for example, a single storey extension; if there is a restrictive covenant on their title preventing this, then on the face of it their build should not go ahead.
The Cure
This is found in section 84(1) of The Law of Property Act 1925. This gives the Upper Tribunal (Lands Chamber) power to discharge or modify a restrictive covenant in a number of situations including: the restriction becoming obsolete; the continued existence of the restriction impeding some reasonable use of the land; agreement; and a discharge/modification would not injure the persons entitled to its benefit.
A Recent Example
In the recent case of Doherty v Paskhin [2023] UKUT 00196 (LC), the applicants wished to build a single storey extension to the rear of their mid-terrace house on the Selborne Estate in South London. This included a loft conversion and a rear dormer roof extension. They were exercising their permitted development rights and in 2021 the Council issued certificates of lawfulness for the proposed works including a deed of release from the restriction on their property.
The restrictive covenant was contained in a 1984 transfer stating that:
…the premises shall not hereafter be altered and no additional buildings walls fences or other erections shall hereafter be constructed or maintained on the premises.
The proposed works were thus in breach of this restriction and the neighbouring property objected. The applicants therefore needed to and did apply to the Upper Tribunal who carried out a site visit and considered expert evidence produced by the applicants.
The Tribunal found that the restriction was not obsolete even though a number of other properties on the Estate had made structural changes to their properties; as they were not sufficient in number and so widespread that the restriction ought to be deemed obsolete.
And whilst an argument on agreement was also rejected, the application was allowed on the basis the proposed use was reasonable and the restriction impedes that use with no practical benefit, value or advantage by upholding it. The swaying point seems to have been the expert evidence from the surveyor who noted that the loft conversion and dormer would not extend above the existing roof line or forward of the eaves and would not impact on the sunlight or daylight. It would only be visible from the objector’s first floor room by leaning out of the window and there would be no new loss of privacy. In addition, there would be no additional noise leakage and allowing the application was unlikely to release any pent-up demand. The Judge also noted that the restriction had been breached by neighbouring properties to their rears and that the applicant’s proposals would follow this general pattern and have only a minor impact on the street facing elevation by the installation of 2 roof lights. A party wall act/warranty was added as a condition for the build.
Practical Points
If an agreement cannot be reached with any objectors, then a full application to the Upper Tribunal would need to be made.
Persuasive expert evidence is probably needed as well as a number of other documents in support from other neighbours and, as in the case above, a deed of release and/certificate of lawfulness from the Council is also persuasive.
Whilst the burden to prove a restriction is obsolete is high, as seen from the above case, other grounds can be used and in relation to reasonable use the Tribunal will rely on expert evidence in this regard.
Matthew has over 20 years’ experience in contract and property disputes. This ranges from simple contract disputes to advice and representation under the 1975 Act and trust disputes between co-habitees. Please contact his clerks for more information or if you would like to instruct him.