Tribunal Grants Modification of Restrictive Covenant for Residential Care Home Use in Landmark Muskwe & Anor v Cochrane Case

Citation: [2023] UKUT 262 (LC)
Judgment on


The case of Muskwe & Anor v Cochrane [2023] UKUT 262 (LC) is a significant decision from the Upper Tribunal (Lands Chamber) that addresses the modification of restrictive covenants in the context of property use. The applicants sought to modify a restrictive covenant to use a property as a residential care home, contrary to the existing covenant that required the property to be used only as a single private dwelling. This article analyzes the key topics and legal principles applied in the case.

Key Facts

The property at the center of the case is located in Braintree, Essex, and was burdened by a restrictive covenant prohibiting its use other than as a single private dwelling house. The applicants, Mr. Muskwe and Ms. Havazvidi-Muskwe, despite owning the property, resided elsewhere and sought to use the property within their childcare business. Braintree District Council granted planning permission for a change from residential dwelling (C3) to Residential Care Home (C2), but the covenant remained a barrier. After a brief period of using the property as a care home in breach of the covenant, the applicants applied to the Tribunal for its modification under grounds (aa) and (c) of s.84 of the Law of Property Act 1925.

The Tribunal’s analysis was grounded in the application of s.84 of the Law of Property Act 1925. Specifically, the Tribunal examined:

  • Ground (aa): Impediment to Reasonable Use: The Tribunal assessed whether the restriction impeded a reasonable use of the land and whether the restriction secured any practical benefits of substantial value.

  • Ground (c): No Injury to Beneficiaries: The Tribunal also considered whether the modification of the restriction would injure the beneficiary of the covenant, Michelle Cochrane.

The Tribunal took into account the public interest, the development plan, and patterns of planning permissions in the area as part of its considerations. Furthermore, it examined the period and context in which the covenant was created to discern if any material circumstances justified its discharge or modification.


The Tribunal granted the application, finding that the restriction did not secure any practical benefits of value to Ms. Cochrane, the sole objector. Despite her concerns, which arose from living adjacent to the property during its use as a care home, the Tribunal found no evidence that the restriction provided any substantial benefit. Consequently, the Tribunal concluded that there was no risk of injury to the parties entitled to the benefit of the restriction. The Tribunal ordered the modification of the covenant to allow the property’s use as a residential care home in accordance with the planning permission granted by the Braintree District Council.


The Muskwe & Anor v Cochrane case demonstrates the Tribunal’s careful consideration of restrictive covenants and the balance between property use and the rights of beneficiaries. The decision underscores the general principle that restrictions must secure perceptible and substantial benefits to beneficiaries to withstand applications for modification. When such benefits are not evident, and where the public interest aligns with proposed use, the Tribunal is likely to exercise its discretion to permit reasonable uses of land, reflecting the pattern of development within a given area.

The case sets a clear precedent that practical benefits must be evident and significant to uphold a restrictive covenant in the face of reasonable land use and development. Legal professionals can draw from this decision an understanding of how the Tribunal is likely to approach similar cases concerning the modification of restrictive covenants.