Discharge, modification and release of covenants

Discharge of covenant

complete removal of a covenant so it no longer exists

Modification of covenant

covenant remains but terms are changed

Restrictive covenant duration

can last indefinitely unless discharged or modified

Obsolete covenant

covenant no longer provides practical benefit due to changes in land or neighbourhood

Merger

same person owns both dominant and servient land

Effect of merger

covenant automatically ends

Reason for merger rule

cannot enforce covenant against oneself

Example (merger)

owner of dominant land buys servient land → covenant extinguished

Express release

formal agreement to remove covenant

Requirement (express release)

must be by deed

Typical scenario

dominant owner releases covenant in exchange for payment

Effect of express release

permanently removes covenant

Implied discharge

dominant owner allows breaches without enforcement

Effect of implied discharge

suggests covenant abandoned

Nature of implied discharge

rare in practice

Statutory discharge

application to Upper Tribunal (Lands Chamber) to remove or modify covenant

Scope of s84 LPA 1925

applies only to restrictive covenants

Ground (obsolete)

covenant outdated due to changes in character of land or area

Ground (reasonable use)

covenant prevents reasonable use of land

Ground (agreement)

dominant owner consents expressly or impliedly

Ground (no injury)

discharge causes no harm to dominant land

Outcome of s84

tribunal may discharge or modify covenant

Exam summary (merger)

same owner → covenant ends

Exam summary (express release)

deed removes covenant

Exam summary (implied discharge)

ignored breaches suggest abandonment

Exam summary (statutory discharge)

tribunal removes/modifies if obsolete or impeding use

Enforcement (original covenantor)

liable at common law for both positive and restrictive covenants

Enforcement (successor covenantor common law)

not bound by burden for either type

Equity burden (Tulk v Moxhay)

only restrictive covenants bind successors

Mutual benefit and burden

possible enforcement of positive and restrictive covenants if benefit taken

Chain of indemnities

enables indirect enforcement of positive covenants

Building scheme

allows mutual enforcement of restrictive covenants

Leasehold workaround

positive and restrictive covenants enforceable through leases

Discharge method (merger)

applies to both positive and restrictive covenants

Discharge method (express release)

applies to both types

Discharge method (implied release)

applies to both types

Statutory discharge (s84)

applies only to restrictive covenants