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Reform Of Covenants Notes

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A more recent version of these Reform Of Covenants notes – written by Oxford students – is available here.

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

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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 =

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

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

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Enforceability of particular covenants often in doubt

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Procedure for discharge and modification inadequate
? Proposals:

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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

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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:

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

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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

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

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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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Currently

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