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Obsolete Restrictive Covenants: a Socio-Legal Analysis of the Problem and Solutions. Emily Walsh This Thesis Is Submitted In

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Obsolete Restrictive Covenants: a Socio-Legal Analysis of the Problem and Solutions. Emily Walsh This Thesis Is Submitted In Obsolete restrictive covenants: a socio-legal analysis of the problem and solutions. Emily Walsh This thesis is submitted in partial fulfilment of the requirements for the award of the degree of Doctor of Philosophy of the University of Portsmouth. May 2016 1 | P a g e Abstract Debates 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. 2 | P a g e Contents Chapter One - Introduction 1.1 Introduction ........................................................................................................... 25 1.2 Restrictive covenants ............................................................................................. 25 1.3 The utilitarian approach of this research ............................................................... 31 1.4 The hypothesis, aims and objectives of this study ................................................ 32 1.5 Methodology ......................................................................................................... 33 1.6 Structure ................................................................................................................ 35 Chapter Two – The history of restrictive covenants and their place in law and society 2.1 Introduction ........................................................................................................... 37 2.2 Theoretical context ................................................................................................ 37 What is property?.............................................................................. 38 Where do restrictive covenants fit as property rights? ..................... 41 To what extent can and does the state interfere with these rights? . 47 What about the rights of future property owners? .......................... 50 2.3 Public versus private land control .......................................................................... 51 2.4 The impact of land registration on restrictive covenants ...................................... 56 2.5 Conclusion – the theoretical position of this research .......................................... 57 Chapter Three – The case for reform and human rights 3.1 Introduction ........................................................................................................... 60 3.2 Problems with interpretation of restrictive covenants and how restrictive covenants are dealt with in practice ...................................................................... 60 General contractual interpretation ................................................... 60 Implication and restrictive covenants ............................................... 64 Mortgage lenders and restrictive covenants ..................................... 65 Dealing with restrictive covenants .................................................... 66 Restrictive covenant indemnity policy .............................................. 66 3.3 Law reform ........................................................................................................... 69 3.4 The meaning of obsolete ....................................................................................... 71 3 | P a g e Age and obsoleteness/ utility ............................................................ 73 3.5 Restrictive covenants and human rights ................................................................ 73 3.6 Conclusion ........................................................................................................... 78 Chapter Four – Comparative jurisdictions 4.1 Introduction ........................................................................................................... 79 4.2 United States .......................................................................................................... 80 4.3 Australia ................................................................................................................ 83 4.4 Northern Ireland .................................................................................................... 87 4.5 Ireland .................................................................................................................. 88 4.6 Scotland ................................................................................................................. 89 Feudal burdens .................................................................................. 91 Servitudes .......................................................................................... 92 Discharge of real burdens ................................................................. 92 Consent ............................................................................................. 92 Negative prescription ........................................................................ 93 Acquiescence ..................................................................................... 93 The role of the Keeper....................................................................... 93 The Lands Tribunal Scotland ............................................................. 94 Reform of the law and historic real burdens ..................................... 94 Discharge and modification............................................................... 95 The sunset rule .................................................................................. 99 4.7 Comparison of legislative mechanisms .................................................................. 102 Change in circumstance and time ..................................................... 103 Purpose of the covenant ................................................................... 103 Extent of the benefit, detriment and compensation ........................ 103 Planning ............................................................................................. 104 Agreement ......................................................................................... 104 Other material factors ....................................................................... 105 4.8 Conclusion ........................................................................................................... 105 Chapter Five – Methodology and research design 5.1 Introduction .......................................................................................................... 106 4 | P a g e 5.2 Research philosophy .............................................................................................. 106 Epistemological considerations ......................................................... 106 Positivism ................................................................................ 106 Interpretivism .......................................................................... 107 Ontological considerations ................................................................ 108 Quantitative and qualitative methods .............................................. 108 The paradigm wars ................................................................. 109 Mixed methods ................................................................................. 109 Making paradigmatic sense of mixed methods ...................... 110 5.3 Socio-legal and empirical legal research
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