Row of houses in London Borough of Sutton
Applications are made from time to time to register a release of restrictive covenants. On most occasions we will only be able to make an entry in the register to the effect that the covenants are expressed to be released.

For a covenant to be extinguished it must be clear that the whole of the land which has the benefit can be precisely identified and that all the persons having an interest in the benefiting land have joined in. This is a rare occurrence.

Deeds of release

Where persons having the benefit of a covenant join in a deed with the owner of land burdened by that covenant, releasing the land from the burden, we will only cancel the restrictive covenant entry from the register of the burdened title if it is clear that all the owners of land having the benefit have joined in the release. In some cases this might be quite clear, for example where it can be established from the register or filed deed that the persons releasing the covenant own all the benefiting land. If the benefiting land is unregistered we will need to see documentary evidence of title.

The applicant must be able to demonstrate that either:

  • the restrictive covenants were properly annexed to identifiable land which the persons releasing the covenants own the whole of; or, if they have parted with any part or parts of the benefiting land, the present owners are party to the deed. The applicant must demonstrate the title of any such owners, or
  • the benefit of the restrictive covenants was expressly assigned to them and that there was identifiable land capable of benefiting from their imposition that was conveyed to them at the same time.

As to the above points, see:

  • Newton Abbot Co-operative Ltd v Williamson & Treadgold Ltd [1952] Ch.286
  • Federated Homes Ltd v Mill Lodge Properties Ltd [1980] 1 WLR 594.

In practice it will be very difficult to establish the precise extent of the land originally benefiting from the covenants and therefore who must be a party to the release if it is to be effective. In most cases, therefore, we will only be able to make an expressed entry of the release. This will be along the following lines.

“By a deed dated [date] made between [parties] the covenants contained in the [Transfer dated [date] above] were expressed to be released”.

An application for the cancellation of restrictive covenants should be made in form CN1.

However, if an applicant is unable to demonstrate that the release has been fully effective, they should apply in form AP1 for an entry in respect of the deed.

A fee is payable in accordance with Schedule 3, Part 1(1) (b) of the Fee Order. Electronic dealing of whole applications attract a 50 per cent reduction.

If the covenants have come to an end only in part or the release is qualified in any way, the covenant entry in the register will not be cancelled. An appropriate entry will be made in the register expressing the part release, or other qualification.

Merger

We will cancel a notice of restrictive covenants where unity of seisin is established. For this it will be necessary to show that the whole of the freehold of the benefiting and of the burdened land have become vested in the same person in the same right.

The intention that the covenants should be determined must be clear and a specific application is required to cancel the entry relating to the covenants from the register.

An application should be made in form AP1. A fee is payable in accordance with Schedule 3, Part 1(1) (b) of the Fee Order.

Order of the Upper Tribunal

The Upper Tribunal (Lands Chamber) has power to order the discharge of covenants under s.84 (1), Law of Property Act 1925 as amended by s.28, Law of Property Act 1969.

If the tribunal wholly releases the covenants we will cancel the entry relating to the covenants completely. We will not make an entry in respect of the order unless it imposes new covenants or stipulations.

If the order modifies or only partially releases the covenants we will make an entry in respect of the order along the following lines.

“By an Order of the Upper Tribunal (Lands Chamber) dated … made pursuant to Section 84 of the Law of Property Act 1925 the restrictive covenants contained in the … dated … referred to above were [released to the following extent] [modified as follows: – ]”.

If it is impracticable to set out the terms of the release, we will scan and file a copy of the order.

Where only some of the covenants have been wholly released, we will make an entry along the following lines.

” … the restrictive covenants contained in [clauses 1, 5, 9 and 11 of the First Schedule] to the … dated … referred to above were released.”

An application should be made in form AP1. A fee is payable in accordance with Schedule 3, Part 1(1) (b) of the Fee Order.

 


Pascal Lalande
By Pascal Lalande,
Central Operations Manager at HM Land Registry