HMG Law: Solicitors of Oxford.

Some properties are subject to what are known as “restrictive covenants” – provisions in the title deeds preventing a particular use of the property.

In certain limited circumstances the court will order that the restrictive covenants should be removed or varied. In the recent case of Re Brainshaugh House the court granted an application to discharge restrictive covenants over Brainshaugh House. The House formed part of Sir Anthony Milburn's estate, until he sold it to people called Coombes in 2002. The transfer imposed several restrictive covenants on the future use of Brainshaugh House. The people entitled to enforce the covenants were of Sir Anthony, his family and descendants, but not further.

Sir Anthony disposed of the majority of the remainder of his estate in 2008. The Coombes wanted to refurbish and redevelop the House, and applied to the court to have the covenants discharged or modified. Under the legislation a covenant is obsolete, and will be removed where it is no longer possible for it to serve its original purpose, by reason of changes in the character of the property, or the neighbourhood, or other circumstances of the case which the court may deem material.

The court decided that the sale by Sir Anthony of the majority of the estate to a third party, who was not entitled to the benefit of the covenants, was a material change of circumstances. The original purpose of the covenants (to benefit the retained estate) could not be served with only a small part being retained by Sir Anthony.

This is an interesting departure from previous decisions where the court thought that the "other circumstances" referred to physical circumstances, and not a change in legal status. In this case, it was just such a change in the legal status of the estate that rendered the covenants obsolete.