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Covenants over property are a potential nightmare for developers but fortunately there are circumstances in which a covenant can be removed.
If the beneficiaries of the covenant for which removal is sought cannot be persuaded by negotiation to give up their rights, an application under Section 84 of the Law of Property Act 1925 may be made to the Lands Chamber of the Upper Tribunal (UT) for the covenant to be removed or modified.
This can be granted on the following grounds (in simplified terms):
In practice, the UT will make its decision on an application to vary a covenant based on the specific facts of the case – there is relatively little in case law by way of guidelines. It is therefore important for those seeking the removal or modification of a covenant that the best possible case is made at the outset in order to persuade the UT that the arguments for the variation or removal are compelling.