Modifying a restrictive covenant

The Upper Tribunal has partially modified a covenant to permit the use of a property as a mosque and madrassah, but – following objections from a council – has imposed new conditions on the use of the property. Justin Bates explains the ruling.

A restrictive covenant is a covenant or agreement which affects how an owner can use his land: see generally, Megarry & Wade, The Law of Real Property, 8th Edn, Ch.32.. Such covenants may last indefinitely but, owing to, e.g., the passage of time, or changes in law or policy, may become obsolete or onerous.

The Upper Tribunal (Lands Chamber) has power to modify or discharge a restrictive covenant where its continued existence would, inter alia, impede the reasonable use of the land and where it considers that the payment of money would be adequate compensation for any loss or disadvantage: s.84(1)(aa), Law of Property Act 1925.

In Trustees of the Green Masjid and Madrasah v Birmingham City Council [2013] UKUT 355 (LC), September 25, 2013 (Mr Trott FRICS), the applicants were the freeholders of a property in Birmingham. The property had previously been owned by the city council. It was subject to a restrictive covenant prohibiting its use other than as a private house or an office for a dentist, solicitor or other professional person.

In 2009, the property was sold to a nominee for the applicants. That nominee asked the council to agree to modify the covenant so as to permit the property to be used for “educational purposes”. The council declined that request, citing concerns about the potential for increased traffic and impact on a predominantly residential area. Notwithstanding the terms of the covenant and the absence of consent, the nominee started to use the property as a mosque and madrasah. The property was transferred from the nominee to the applicants in 2011. The applicants applied to discharge or modify the covenant so as to permit their current use of the property.

The Upper Tribunal allowed the application in part. The evidence established that there was a local need for a mosque and madrasah which could be met by allowing the applicants to continue to use the property for such purposes. However, the covenant would be modified so as to prevent the property being used for a call to prayer which was audible outside the building. In addition, the covenant would be modified so as to prohibit the building from being extended. Further, in light of the “sustained and wilful” breach of covenant by the applicants, they were ordered to pay a proportion of the council’s costs.

Justin Bates is a member of Arden Chambers and appeared on behalf of the objector, Birmingham City Council, in this case. He can be contacted on 020 7242 4244 or by This email address is being protected from spambots. You need JavaScript enabled to view it..