Aboaba v Phillip: Upper Tribunal refuses holiday let covenant modification despite ground (aa) being made out

The Upper Tribunal (Lands Chamber) has refused to modify a restrictive covenant to allow an annexe to be used as a holiday let. It did so even though the applicants established jurisdiction under section 84(1)(aa) of the Law of Property Act 1925, because they had let the property in knowing breach of the covenant.

In Johnson Aboaba & Anor v Steven Phillip [2026] UKUT 424 (LC), Mrs Diane Martin TD MRICS FAAV declined to exercise the Tribunal's discretion. She held that it would not be fair and just to reward an approach built on seeking retrospective approval.

Background

The applicants, Johnson Aboaba and Lena Buhler, bought a rural property in Somerset in July 2024. It included an outbuilding adjoining the objector's home. A 2003 transfer bound that land with a covenant not to erect, convert or use any building as a dwellinghouse.

The outbuilding was built in 2008 as a home office and workshop, though not to the approved plans. It later became residential accommodation, certified as lawful ancillary use in February 2024, shortly before the sale.

Before completing their purchase, the applicants asked through their solicitors whether the objector would agree to vary the covenant. He refused. They nonetheless began holiday letting without planning permission. After a letter before action, they applied to the Tribunal in October 2025 and only then sought planning consent, which was granted retrospectively in April 2026 subject to a management plan.

Construction of the covenant

Counsel for the applicants relied on Caradon DC v Paton & Bussell (2001) 33 HLR 34 to argue that short-term letting is not use as a private dwellinghouse, while noting that this covenant did not include the word "private". The Tribunal said it had no jurisdiction to make a binding determination on this point, but observed that holiday letting was clearly use as a dwellinghouse.

Ground (a): obsolescence

The applicants pointed to nearby tourist businesses, including glamping previously offered by the objector. Applying Re Fermyn Wood [2018] UKUT 0411 (LC), the Tribunal inferred that the covenant was intended to protect the objector's house from residential development next door. A handful of local tourist businesses did not change the neighbourhood's character, and the objector's own enterprises were within his control. Far from being obsolete, the covenant's purpose was now more important than before.

Ground (aa): practical benefits

It was common ground that holiday letting was a reasonable use and that the covenant impeded it. The objector gave evidence of noise from guests using a hot tub close to his boundary, as well as headlights and overlooking from cars on the drive. He accepted that use of the annexe by the applicants' family and friends was lawful and that he could not always tell which guests were paying.

The Tribunal accepted that the objector's concerns were genuine and not exaggerated. However, with residential use already established, the remaining benefits of preventing holiday lets were marginal and not substantial. Jurisdiction under ground (aa) was therefore made out.

Discretion

The Tribunal noted that the residential use was lawful only because enforcement time had run out, not because it complied with the development plan. It added that, had the objector been represented, a submission based on Alexander Devine Children's Cancer Trust v Housing Solutions Ltd [2020] 1 WLR 4783 that this was a cynical breach for profit "would have merit".

Pointing to a history of unauthorised activity on the land and the applicants' knowing breach after consent had been refused, the Tribunal declined to modify the covenant. The benefits to the objector, though not substantial, were real.

The application was dismissed.