Jurisdiction(s):
United Kingdom

Upper Tribunal guidance on modifying restrictive covenants: reasonable use test, only actual practical benefits, bargaining power irrelevant (Broadway Homes v Marshall [2018] UKUT 264 (LC), England and Wales)

Published on: 18 September 2018

Published by a LexisNexis Property expert

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Article summary

Broadway Homes (Cambridge) Ltd v Bruce Marshall [2018] UKUT 264 (LC)

A developer acquired a detached home with an extensive garden on a residential estate, fully aware that a covenant restricted use of the land to a single private dwelling-house. Having obtained planning consent to demolish the existing house and build two new dwellings, the company—assumed by the Upper Tribunal (Lands Chamber) (UT) to stand to make a substantial financial gain from the project—sought a modification of the restrictive covenant to realise the site’s potential. Several long-standing residents, each of whom had lived on the estate for years and had ‘faithfully abided by’ identical covenants affecting their own properties, objected. The UT was required to determine whether to permit the company’s application.

What are the practical implications of this case?

Although determined on its particular facts, the decision serves as a helpful reminder to property litigators that:

when considering if the proposed use is reasonable, the applicant’s conduct is immaterial
only the actual benefits secured by the...

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