Covenant requiring approval of plans no longer enforceable

Hugh Ellins

Deeds to many properties include a covenant not to build without the consent of a named person/s

A 2021 reported case has decided that if the named person/s are dead then the covenant is not enforceable.

In the case of Savage v 60 Kent Road (Maintenance) Ltd, an application was made to the Lands Tribunal for the modification or extinguishment of a covenant

The covenant, made in 1961, prevented the landowner from erecting buildings or making alterations to the external appearance of buildings “otherwise than in accordance with plans and specifications to be submitted to and approved by the Vendors Surveyor”. The covenant included a requirement to pay to the surveyor a fee of two pounds two shillings in respect of plans and specifications submitted for approval

 All of the original vendors had died.

The Tribunal Judge said  “There is a body of case law authority … to the effect that where there is a restriction against building or making alterations without the prior approval of plans or specifications, and the power of approval is no longer exercisable because the person with such power is no longer in existence, then the restriction automatically lapses.”

He ruled that the covenant had become obsolete and should therefore be discharged. With the death of the last of the original vendors, the power to approve plans and specifications had lapsed, leading to the restriction itself becoming obsolete.

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Hugh Ellins – December 2021