A Covenant To Build Can Be Released After All

4th July 2025 | Caroline Vernon | Residential Real Estate, Covenants, Property

A very old provision of the Law of Property Act 1925 (section 84(1)) (“LPA 1925”) allows the owners of land to apply to the court, to have a covenant discharged or modified, using evidence that the covenant is obsolete.

A recent case in the Upper Tribunal, Ball & Another v Fulton, considered whether covenants are obsolete, where they are personal to an individual, who is no longer able to enforce them.  In this matter, the covenant was contained in a 1962 Conveyance and it restricted building works.  The covenant provided that the landowner was “not to erect…any building other than a dwellinghouse… in accordance with plans as shall be submitted to and received the reasonable approval of the Vendor.”

The owners of the land affected by the covenant, made an application under section 84(1) of the LPA 1925 for the discharge, or alternatively the modification, of the covenant. They argued that the covenant required the personal approval of the original vendor and, since they were deceased, the covenant was rendered obsolete.

The owners of the land benefitting from the covenant objected, claimed that the covenant was intended to benefit successors in title and that, as the original vendor’s successors, their approval was required to any building works on the property.

The Upper Tribunal said it was “well established that a restriction is obsolete if its purpose can no longer be achieved and that where a personal covenant can no longer be complied with because the person to whom it was given is dead, or, in the case of a company , no longer exists, the Tribunal will discharge the covenant on the basis that it is obsolete.”

The Tribunal found that there was no reference to the original vendor’s successors in title within the covenant however there were instances where its successors were expressly mentioned elsewhere in the Conveyance, where they were intended to be included. They found that if it were intended that successors be included in respect of the covenant the Conveyance would have said so.

It was held that this particular covenant was personal to the original vendor and should therefore be discharged because it was obsolete, within the meaning of section 84(1) of the LPA 1925.

When drafting or instructing your solicitor to draft covenants, ensure they are clear and state, where intended to bind successors in title.

Conversely, consider the usefulness of section 84 LPA 1925, as a developer to challenge covenants which are no longer relevant or enforceable.

If you would like to find out more about how covenants might impact your property development plans—or whether they could be challenged—please get in touch with the Sherrards Residential Property Team.