When you've established that there's a restrictive covenant which might be stopping you from either developing or altering a property you should then give some thought as to whether or not the restrictive covenant is capable of being changed or dismissed. Using Section 84 of the Law of Property Act 1925 to Discharge or Modify a Restrictive Covenant Under Section 84 of the Law of Property Act 1925. the Lands Tribunal has the power to make an order, which wholly or partially discharges or modifies the restriction. Currently there are three principal grounds that you could employ: - 1. You may negotiate and come to an binding agreement with the person who has the benefit of the restrictive covenant wherein they will agree to remove the restrictive covenant from the land. 2. You can demonstrate that the character of the property or the neighbourhood has altered since the Restrictive Covenant was imposed or there are other circumstances which the Lands Tribunal consider relevant, which make the restrictive covenant outdated; one example is, the neighbourhood might have become a lot more built up since the granting of the original restrictive covenant. 3. The presence of the constraint imposed by the Restrictive Covenant interferes with the reasonable use of the land. This only applies if the Lands Tribunal is also satisfied that the restriction: - a) Does not give anyone entitled to the benefit of the restrictive covenant any practical benefits of substantial value or advantage (quite simply? restricting or removing the restrictive covenant isn't going to cause the person with the benefit any great disadvantage); or b) Is contrary to the public interest; and that in any event . money will be a satisfactory compensation. This third ground is probably the most widely used ground. The Lands Tribunal will look at matters such as the development plan for the local area and any ascertainable pattern for the granting or refusal of planning consents in the area. While proceeding on this ground it is important to have a report prepared by a surveyor to ascertain where ever the party with the benefit of the restrictive covenant would lose any benefit of substantial value or any practical advantage; a case in point may be where they could lose personal privacy or be exposed to an increased level of noise. In their report, the surveyor should work out any reduction in value caused to the land with the benefit of the restrictive covenant through the proposed development. It might be that the tribunal may decide that the decrease in value is so minor that they will allow the application to be successful; as an example decided in one case the Tribunal decided in that a decrease in value of approximately 1.5% of the objector's property had been not significant and therefore the application succeeded. Procedure for Applying to Land Tribunal to Have a Restrictive Covenant Modified or Discharged: The initial step is always to write to the person with the benefit of the restrictive covenant to ascertain whether or not they are willing to negotiate and agree a price to release the restrictions. At this point it may also be useful to acquire an expert surveyor's report proving that there is likely to be little if any decline in the value of the objector's property. If it turns out negotiations don't succeed and you have to make an application to the Lands Tribunal, you should instruct your solicitor to put together the application. There are particular rules about how the application needs to be prepared. Generally the application will have with it:- 1. A copy of the Deed imposing the restriction or some other sort of documentary evidence of it, if it is not available. 2. A plan showing the land with the benefit and the land subject to the restriction. It still may be feasible to negotiate with the objector at this stage. If this does not work then the issue will be taken care of at a hearing before one member of the Tribunal Panel, who is often a surveyor by profession. There will normally be a site inspection by the Tribunal member hearing the application. Generally if the Tribunal makes a decision to vary or discharge the restrictive covenant the amounts of compensation awarded by the Tribunal could be relatively low. Although these awards are not often based on the value of removing the restrictive covenant to you, sometimes, percentages of net development value have been used as an appropriate compensation award. The Tribunal determines who pays the costs of the application. It is most likely that you're going to end up paying the objector's costs whatever the result.
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This Article is about Restrictive Covenants :Discharge and Modification of Restrictive Covenants
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