Restrictive covenants: the Lands Tribunal or the Court?

The Lands Tribunal has the power under Section 84(1) of the Law of Property Act 1925 to modify or remove a restrictive covenant affecting land. There are various grounds for removal or modification. The Tribunal does not however have the power to determine whether a restrictive covenant is valid or not.  That is a matter for the Court to determine under Section 84(2) of the Law of Property Act 1925.

The distinction between the jurisdiction of the Lands Tribunal and the jurisdiction of the Court came to the fore in the recent case of Doberman v Watson. 

In the Doberman case, the Claimant sought a declaration from the court under Section 84(2) of the Law of Property Act 1925 that land that he owned was no longer affected by a restrictive covenant prohibiting the construction of a second dwelling on the land.  Note that this was an issue concerning the validity of the covenant and therefore a matter for the court rather than for the Lands Tribunal.

In response to the claim, the Defendant applied to strike out the claim on the grounds that in 1978, the Claimant’s predecessor in title had brought a claim in the Lands Tribunal seeking to remove the very same covenant.  The Lands Tribunal had refused to remove the covenant.  The Defendant therefore argued that because the covenant had already been the subject of judicial scrutiny by the Tribunal in 1978, the Claimant’s court application was a second attempt to obtain a judicial determination of exactly the same issue and therefore an abuse of process.

The court disagreed and refused the Defendant’s application to strike out the claim.  The court highlighted the fact that the 1978 application to the Lands Tribunal in 1978 concerned the removal of the covenant under Section 84(1) of the Law of Property Act 1925. The Tribunal was not being asked in 1978 to determine the validity of the covenant. The Claimant’s current application to the court was an application seeking a different determination entirely, namely a declaration that the restrictive covenant no longer affected the land at all.  This was a claim about the validity of the covenant brought under a different statutory provision. It was not therefore an abuse of process. 

The crucial question was whether, in all the circumstances, one party was misusing or abusing the process of the court by seeking to raise an issue which could have been raised before.  The answer to that question in the current case was plainly “no”.   

If you have any questions arising out of this note, please contact Andrew Turner on 01242 586 841 or aet@hughes-paddison.co.uk