Discharge of Covenants
Land Registry Discharge
Prior to the 2009 Act, there existed only a limited mechanism for extinguishing restrictive covenants. Under the Registration of Title Act, a covenant might be discharged on foot of an application to court if it could be shown that the covenant and condition
- did not run with the land.
- as not capable of being enforced against the owner of the land or
- that the modification or discharge of the covenant would be beneficial to persons principally interested in its enforcement.
The above provisions applied only to a registered title. A court order was necessary unless all parties consent to the discharge of the covenant.
Leasehold Discharge
Leasehold covenants usually become automatically discharged upon acquisition of the fee simple subject only to a limited category, which was preserved by statute.
The Landlord and Tenant Ground Rents Act preserves the following categories of covenant and acquisition of the fee simple.
- covenants affecting amenities of land occupied by the immediate lessor;
- covenants relating to the statutory duties of the immediate lessor;
- covenants concerning a right of way over the land or concerning rights of drainage over other land and
- rights necessary to secure or assist the development of the land.
The ground rents legislation extinguishes covenants notwithstanding the lease relates only to part of the land. This may have the effect of extinguishing the lease restrictions even as regards other lessees in the lease under the same lease subject to the same restriction. It appears that the wording of the ground rents legislation mandates this conclusion.
Arguments have been had made that this wholesale extinguishment of covenants may be unconstitutional. The matter was heard by an Irish High Court but not fully argued. The High Court applied the presumption of constitutionality and did not hold the legislation to be unconstitutional.
New General Power
Under the 2009 legislation, there is a general mechanism in Ireland for the discharge of covenants. A broadly similar mechanism has existed in the United Kingdom for many years. An order shall be registered in the Registry of Deeds or Land Registry, as appropriate.
A servient owner may apply to the court for an order discharging in whole or in part or modifying a freehold covenant (whether created before or after the commencement of the 2009 Act) on the ground that continued compliance with it would constitute an unreasonable interference with the use and enjoyment of the servient land.
Criteria for Discharge
In determining whether to make an order and, if one is to be made, what terms and conditions should be attached to it, the court shall have regard as appropriate to the following matters—
- the circumstances in which, and the purposes for which, the covenant was originally entered into and the time which has elapsed since then,
- any change in the character of the dominant land and servient land or their neighbourhood,
- the development plan for the area under the Act of 2000,
- planning permissions granted under that Act in respect of land in the vicinity of the dominant land and servient land or refusals to grant such permissions,
- whether the covenant secures any practical benefit to the dominant owner and, if so, the nature and extent of that benefit,
- where the covenant creates an obligation on the servient owner to execute any works or to do any thing, or to pay or contribute towards the cost of executing any works or doing any thing, whether compliance with that obligation has become unduly onerous compared with the benefit derived from such compliance,
- whether the dominant owner has agreed, expressly or impliedly, to the covenant being discharged or varied,
- any representations made by any person interested in the performance of the covenant,
- any other matter which the court considers relevant.
Where the court is satisfied that compliance with an order will result in a quantifiable loss to the dominant owner or another person adversely affected by the order, it may include as a condition in the order a requirement by the servient owner to pay the dominant owner or another person such compensation as the court thinks fit.
References and Sources
Primary Texts
Wylie on Irish Land Law Wylie 6th Edition 2020
Land Law In Ireland -Lyall 4th Edition 2018
Principles Of Irish Property Law de Londras 2nd Edition 2011
Equity and the Law of Trusts in Ireland- Keane 3rd Edition
Land Law Kenna & Murphy 2019
Land Law Pearce & Mee 3rd Edition 2011
Other Irish Sources
The Land and Conveyancing Law Reform Act 2009: Annotations and Commentary -Wylie 2nd Edition 2017
Property Legislation 2009 2011 Cannon, Clancy, Kenna 2012
Irish Land Law – A Casebook: Adanan Maddox 2020
A Casebook on Equity and Trusts in Ireland – Wylie
Shorter Guides
Land Law Nutshell Cannon 2020
UK Textbooks
Land law C. Bevan 2nd ed.2020
Land Law: Text, Cases and Materials B McFarlane, N Hopkins and S Nield, (4th ed. OUP 2018)
Property Law R Smith(10th ed., Pearson, 2020)
Cheshire and Burn’s Modern Law of Real Property by Burn, E. H. 2011
Modern Land Law Dixon 2018
Elements of Land Law Gray, 2009
Property law: cases and materials Smith 2015
Land law Cooke 2015