We are pleased to confirm that members of the Andrew Jackson Solicitors LLP litigation team recently acted for two of three Objectors in a claim that was heard by Mr Mark Higgin FRICS in the Upper Tribunal (Lands Chamber). The hearing took place at Beverley Magistrates’ Court on 20 December 2022.

The Applicants had a cabin erected in the rear garden of their residential property. They conducted a beauty therapy business from the cabin and obtained retrospective planning permission from East Riding of Yorkshire Council to do so.

A restrictive covenant was attached to the Applicants’ property, to the effect that: “No trade business or profession shall be carried out upon the plot and the plot shall not be used for any other purpose other than as one private dwelling.”

Under Section 84(1) of the Law of Property Act 1925, the Applicants applied to the Upper Tribunal (Lands Chamber) to modify the restrictive covenant.

Rikki Foster, Solicitor (under the supervision of Nick Dean, Partner) of Andrew Jackson Solicitors LLP, acted for the 1st and 2nd Objectors in the claim. The claim was opposed on all grounds.

Section 84(1) gives the tribunal power to modify a restriction on the use of freehold land on being satisfied of certain grounds. The Applicants in this claim relied on conditions (aa), (b), and (c).

The application was successfully opposed on all three grounds, the Tribunal finding (amongst other things) that: –

• The covenant was not intended to prevent owners from occasionally working from home, alone on a laptop in a spare room. This activity is not in conflict with the covenant. However, the whole of the Applicants’ business was conducted from the cabin and the continued use of the cabin for that purpose was impeded by the covenant.
• The restrictions were intended to have a permanent effect and to bind all owners indefinitely.
• Modification would remove the sense of certainty about what might be permitted in future. It would be difficult to justify enforcement of the restrictions against other residents if the modification were to be permitted.
• The covenant ensured that characteristics that make the estate a pleasant place to live were preserved and it protected aspects of the estate that should be maintained.

The case demonstrates that there is a very high threshold for Applicants to satisfy the Tribunal that a restrictive covenant should be modified to allow a residential property to be used for business purposes.

Even if a ground is made out under Section 84(1), the Tribunal has the power to still refuse an application.

The link to the full judgment is available here:

https://www.bailii.org/uk/cases/UKUT/LC/2023/41.html

If you are unsure about a claim that you would like to bring, or that you are preparing to defend, our experienced team is here to help you. Talk to us today by emailing enquiries@andrewjackson.co.uk or call 01482 325242.