Modification of restrictive covenants for use

Restrictive covenants

In the case of Johnson [2022] UKUT 294 (LC) an application was made to the Upper Tribunal (Lands Chamber) to modify two restrictions on the title of a residential property. The applicant wished to use the property as an Ofsted registered childminders for six children and there were restrictive covenants preventing this. This did not require planning permission as this was not required under their local authority up to a maximum of six children.

The Upper Tribunal ordinarily rely on the scrutiny of the planning process however in this case the UT had to unusually decide the case on its own merits. There were two restrictive covenants dated 1937 and 1965 which impeded the use of the property as a childminding business. 

Following a review of the application and a site visit, and despite concerns regarding parking and road safety, the application was successful. The title covenants were modified to allow the business to operate from the property. The UT commended the applicants research and the evidence provided and confirmed that they had been successfully persuaded as a result.

The case highlights the importance of ensuring you receive detailed legal advice before purchasing a property for a particular use or for development. 

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