Restrictive Covenant: Whether a Restrictive Covenant Could & Should Be Modified by the Upper Tribunal (Awinoron and another v London Borough of Barking and Dagenham – 2025)

Where a restrictive covenant preventing alterations without consent is breached, did the Upper Tribunal have jurisdiction to modify the covenant and, if so, should the covenant be modified.

The background

In Awinoron and another v London Borough of Barking and Dagenham [2025], the applicants purchased a property within the respondents’ local authority area on an estate owned by the local authority. The property had been sold to predecessors in title and became privately-owned under the Right to Buy Scheme, but restrictive covenants that affect the whole of the estate remained in force over Right to Buy properties and others in the neighbourhood for the benefit of the respondent local authority.

When the applicants acquired the property, they carried out alterations including the erection of a porch and a boundary fence without having first obtained the consent of the local authority as required under the restrictive covenant.

The local authority objected to the alterations, and applied for an injunction that would require the applicants to demolish the works and restore the property to its original condition in order to maintain the aesthetic characteristics of the neighbourhood.

During the hearing, the local authority presented evidence including an email requesting that the works cease, dated 14 July 2021. The works were completed by 18 September 2021. The boundary fence works restricted wheelie bin access for adjoining neighbours.

The applicants argued that the restrictive covenant, intended to preserve the aesthetic character of the estate, did not extend to protect the interests of the local authority in neighbouring property, and argued that the local authority had not been able to evidence the practical benefits of enforcing the restrictive covenant.

The local authority respondents argued that enforcement of the restrictive covenant was necessary to maintain the appearance of the area, and further argued that the alterations carried out by the applicants adversely affected the local authority’s ability to allocate the neighbouring property to people with disabilities owing to access restrictions.

The decision

The Upper Tribunal found that it did not have jurisdiction to modify the covenant and found in favour of the local authority, granting an injunction that required the applicants to restore the property.

The UT considered that the original purpose of the restrictive covenant remained valid, and found that the applicants had carried out the works without consent and that their actions constituted a trespass.

While the purpose of the restrictive covenant in maintaining the character of the estate remained legitimate, and having concluded that a payment of money would not adequately compensate the local authority, the UT did not consider that it had jurisdiction to modify the restriction and the injunction was granted.

Advice and action for landlords

This decision is a timely reminder for property owners and occupiers that failure to observe restrictive covenants which still carry a valid purpose is taken seriously by the tribunals, and the tribunals will consider all avenues open to them including injunctive relief and/or financial compensation.

In this case, the restriction was not deemed to be obsolete, nor would a payment of money be adequate compensation. The applicants were therefore required to restore the property to its condition prior to the alterations.