Challenging Restrictive Covenants
The presence of restrictive covenants often creates real problems for developers wanting to progress the development of property. Often, developers are faced with covenants that are seemingly obsolete and of no benefit to any adjoining property and have to face what to do to progress matters.
Frequently, indemnity insurance is available, but when it isn’t, or when the cost of it is too great, thought should be given to whether or not it is worth considering making an application to the Upper Tribunal (Lands Chamber) for the restrictive covenant to be discharged or modified. Traditionally, developers have run shy of making such applications, not least because of uncertainty on costs and time. However, it might be worth reconsidering such applications, not least because the UTLC is currently dealing with applications relatively speedily and, where developers are able to show that the covenants give no practical benefit of any substantial value or advantage, then a discharge or modification can be obtained.
As with everything, it is important to read the small print and each matter will turn on its own facts, but what had previously been an often disregarded route, is increasingly a possible course of action.
Contact James Clewlow if you want to talk more about such applications.
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