Panashe Muskwe & Anor v Michelle Cochrane
[2023] UKUT 262 (LC)
Peter Martin Kay v Joanne Sarah Cunningham & Anor
24 October 2023
[2023] UKUT 251 (LC)
Upper Tribunal
A homeowner wanted to rent out a few rooms in their historic house. Their neighbour didn't want them to. A judge said it was okay to rent out some rooms, as long as they didn't make too much noise and followed some extra rules.
Key Facts
- •Lea Hurst, a Grade II listed historic house, was subject to a restrictive covenant preventing its use other than as a single private residence.
- •Mr. Peter Kay, the current owner, sought to modify the covenant to allow bed and breakfast use of five bedrooms.
- •Mrs. Joanne Cunningham and Mr. Barry Nix, owners of neighbouring Lamp Cottage, objected to the modification.
- •The application was heard by the Upper Tribunal (Lands Chamber).
- •The Tribunal inspected Lea Hurst and Lamp Cottage before reaching a decision.
Legal Principles
The Tribunal has the power to modify restrictive covenants under Section 84 of the Law of Property Act 1925.
Law of Property Act 1925, s84(1)(a)(aa)(b) and (c)
Under s84(1)(aa), the Tribunal may modify a covenant if its continued existence impedes a reasonable use of the land and secures no practical benefits of substantial value or advantage to the benefitted party.
Law of Property Act 1925, s84(1)(aa) and (1A)
In determining modification applications, the Tribunal considers the development plan, planning permission patterns, the covenant's creation context, and other material circumstances.
Law of Property Act 1925, s84(1B)
Even if jurisdictional grounds are met, the Tribunal exercises its discretion cautiously in deciding whether to modify a covenant.
Alexander Devine Children’s Cancer Trust v Housing Solutions Ltd [2020] UKSC 45 and Re The Trustees of Green Masjid and Madrasah [2013] UKUT 0355(LC)
Outcomes
The application to modify the covenant was granted.
The Tribunal found that the continued existence of the covenant impeded a reasonable use of the land (bed and breakfast use of five rooms) and did not secure practical benefits of substantial value or advantage to the objectors. The Tribunal also considered that the applicant's conduct, while a breach, was not egregious or unconscionable. The planning context and the limited scale of the proposed bed and breakfast operation mitigated concerns about noise and potential for further development.
The modification will include a further restriction limiting guest vehicle access to the new driveway.
This additional restriction was deemed a reasonable precaution against disturbance to neighbours.