AbstractDebates concerning the perceived problems regarding restrictive covenants have engaged the legal academic and reform community for almost fifty years. Law reform committees, in recent years the Law Commission, have consulted and reported many times yet significant reform has not been forthcoming. Whilst other jurisdictions have also considered the problem there has been little in the way of detailed comparative research between England and other countries and no research that could be considered to be empirical. This research aims to analyse the problem of obsolete restrictive covenants using a socio legal approach in order to assess the extent of the problem and to provide potential solutions.
As a philosophical position, utilitarianism judges law in terms of the extent to which it provides the greatest happiness to the greatest number. In this research utilitarianism provided a measure against which to assess the current law and procedure and from which to contemplate law reform. Quantitative analysis using inductive coding of a large data set of land registry titles produced a reliable measure of the types of covenant burdening land in England and Wales across time. This analysis provided the basis for consideration of the extent of problem of obsolete restrictive covenants. Thematic analysis of expert interviews and responses to the Law Commission’s most recent consultation in both England and Scotland produced themes relating to both the perceived problem and also the potential solutions.
The conclusions to this research are twofold. Firstly, that reform of restrictive covenants would be beneficial from a utilitarian perspective. To this end a number of reforms of the law and procedure, beyond those proposed by the Law Commission, are suggested. These include recommendations to remind land owners to check their titles for restrictions prior to commencement of development, a notice procedure to ‘flush out’ objections to proposed breaches of covenants, a ‘sunset rule’ to make old covenants which lack usefulness easier to remove and a more general reform of the legislative procedure for removal of restrictive covenants. Secondly, this research concludes that legal reformers could benefit from a more thorough use of social science methodology in analysis of legal problems and suggestions are made for further consideration in this regard.
|Date of Award||May 2016|
|Supervisor||Timothy Goodhead (Supervisor), Ann Coats (Supervisor) & Salam Al-Bizri (Supervisor)|