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Reform Of Covenants Notes

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Law Commission CP 108 (2008): Reform of Covenants Reform History - suggestions for reform over the years

Number of options have been considered over the years for the reform of covenants: o Wilberforce Committee:
? Problem identified that the burden of positive covenants, as opposed to the benefit =

Positive Covenants cannot run with the land o Other devices trying to circumvent this restriction =
? Proposed to allow positive covenants benefits AND burdens run with the land

And that Lands Tribunal have ability to discharge or modify positive covenants o Law Com 1967:
? Two problems identified with restrictive covenants:

Enforceability of particular covenants often in doubt

Procedure for discharge and modification inadequate
? Proposals:

Creation of "land obligation" created by specified land over other specified land o Thus meaning benefit and burden would run automatically with the land o More akin to easements than covenants
? To address this problem, amend s84 of LPA 1925 so that Lands Tribunal have greater powers to modify or discharge obligations. Case for Reform: 2008

Restrictive Covenants o Law Com: keep restrictive covenants b/c still useful
? Reform will cure of defects
? Planning Law is wide but still need private restrictive covenants b/c:

Restrictive covenants cater for private individuals for purposes which planning law doesn't help

Planning Law can't deal with restrictive covenants as unrealistic to expect planning authorities to concern self with detailed matters for which restrictive covenants now make provision

Certain changes of use which neighbour might reasonably object to don't require planning permission

Only planning authorities can enforce planning controls - restrictive covenants needed to allow private individuals to enforce instead.
? Abolition would lead to Land arbitrarily changing value overnight b/c some rights that were enforceable would no longer be enforceable
? Preventing freehold covenants will lead to people using leasehold instead where still available - for better or worse. o Defects of restrictive covenants
? Identifying who holds the benefit


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