Q: Our property was built as two cottages. However, in the 1970s, one of the cottages was converted into a shop. The title deeds require any change of use to be with the “prior written consent” of the owners of the property next door. We want to turn the shop back into living space. There is a concern that the neighbours might not (for whatever reason) grant permission. What is the extent of the obligation mentioned in the documents?

A: The requirement to obtain permission for change of use is a restrictive covenant. A similar situation arose in the 2005 case of Sims v Mahon, which involved a garden in Burton-on-Trent. There was a restrictive covenant that prevented the householders from building on the garden without the permission of their neighbours. The High Court found that there was an implied term that the neighbours must act reasonably when deciding whether or not to give permission.

It is likely that a similar implied term applies in your case. When you ask consent to convert the cottage back into living space, your neighbours cannot refuse consent unreasonably.

Whether the neighbours act reasonably will depend on what their reasons are. For example, if they refused because the conversion would clearly exacerbate parking problems, this would probably be a reasonable objection. However, a refusal because the neighbours don't like your cat would not be.

If the parties cannot agree, ultimately a court could be asked to decide whether the neighbours' objection was reasonable. I certainly think a court would take into account that the plan is simply to return the cottage to its original use - but that would be only one of a number of possible factors involved.

You could also apply to the Lands Tribunal to have the covenant discharged or modified under Section 84(1) of the Law of Property Act 1925. The Lands Tribunal can do this if the covenant is either obsolete or it impedes the reasonable use of your land. However, you would also have to show that the change would cause no injury to the neighbours - which is something they would probably resist.

The writer is a barrister at Tanfield Chambers. E-mail your questions to: property.consumer@thetimes.co.uk

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