Land Titles Act 1993 · 2020 Revised Edition · Part 14 · Restrictive Covenants
140. Release and variation of restrictions
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The burden of a restriction may be released wholly or in part, and the obligation created by a restriction may be varied, by an instrument in the approved form executed by the proprietor for the time being of the dominant land and by any person having a registered interest in that land.
restriction
“restriction” means a restriction on the user of registered land created expressly by a covenant other than a covenant contained in a mortgage, charge or lease;
Upon application by the proprietor of the servient land, the Registrar must enter a notification of that instrument on the relevant folio.
proprietor
“proprietor” means any person who appears from the land‑register to be the person entitled to an estate or interest in any land which has been brought under the provisions of this Act, and includes a mortgagee, chargee and lessee;
Where the dominant land is not under the provisions of this Act, the Registrar need not be concerned to investigate the title to that land.
dominant land
“dominant land” means the land to which the benefit of a restriction is annexed;
The entry of a notification of an instrument of release or variation does not give the instrument any greater operation or effect than it would have had without such entry.
instrument
“instrument” includes a transfer, lease, mortgage, transmission application, charge and any other application, or any other document in writing relating to any disposition, devolution or acquisition of land or any claim to or vesting of interest in land;
Without prejudice to subsection (1), upon the application of any person interested in land affected by a restriction, the court has power, by order, wholly or partially, to extinguish or vary the restriction, upon being satisfied —
land
“land” means —(a)the surface of any defined parcel of the earth, so much of the subterranean space below and so much of the column of airspace above the surface whether or not held apart from the surface as is reasonably necessary for the proprietor’s use and enjoyment, and includes any estate or interest therein and all vegetation growing thereon and structures affixed thereto; or(b)any parcel of airspace or any subterranean space whether or not held apart from the surface of the earth and described with certainty by reference to a plan approved by the Chief Surveyor and filed with the Authority, and includes any estate or interest therein and all vegetation growing thereon and structures affixed thereto,and where the context so permits, the proprietorship of land includes natural rights to air, light, water and support and the right of access to any highway on which the land abuts;
that by reason of a change of use of the land affected, as approved by planning permission within the meaning of the Planning Act 1998, the continued existence of the restriction will impede the development of the land for public or private purposes; or
that the proposed extinguishment or variation will not materially injure the person entitled to the benefit of the restriction.
An order extinguishing or varying a restriction under subsection (5) may direct the applicant to pay to any person entitled to the benefit of the restriction such sum by way of compensation as the court may think just to award under one, but not both, of the following heads:
a sum to make up for any loss or disadvantage suffered by that person in consequence of the extinguishment or variation;
a sum to make up for any effect which the restriction had at the time when it was imposed in reducing the consideration then received for the land affected by it.
On an application to the court under subsection (5), the court is to give any necessary directions as to the persons who are or who are not to be admitted (as appearing to be entitled to the benefit of the restriction) to oppose the application.
Any order made under subsection (5) is binding on all persons whether ascertained or of full age and capacity or not, then entitled, or thereafter capable of becoming entitled, to the benefit of any restriction which is extinguished, varied or dealt with, and whether those persons are parties to the proceedings or have been served with notice or not.
An order may be made under subsection (5) notwithstanding that any instrument which is alleged to impose the restriction intended to be extinguished, varied or dealt with may not have been produced to the court and the court may act on such evidence as it may think sufficient.
For the purposes of subsection (5), the court may dispense with personal service and may order service to be effected by an advertisement in any one or more daily newspapers or in such other manner as the court thinks fit.
The Registrar must enter on the relevant folio a notification of any order of court extinguishing wholly or in part a restriction already notified thereon, or varying the provisions of such a restriction, if the order or a duly certified copy thereof is produced to him or her for that purpose and upon entry of the notification, the restriction is extinguished or varied to that extent.