Summary
We examine restrictive covenants and their use. They are usually used to restrict what a buyer can do with a property, though some have passed their date of usefulness.
Restrictive covenants are used by landowners to stop certain acts being carried out on their land. These are usually implemented when the person selling the land wants to restrict what the buyer can do on it.
My property has a restrictive covenant – what does that mean?
Restrictive covenants can prevent owners from changing certain aspects of their property as they are written into the property deeds.
The beneficiary, also known as the covenantee, has the right to enforce the restrictive covenant, and it is crucial to act quickly to avoid potential repercussions, such as significant expenses incurred by a developer.
Restrictive covenants can cover a wide variety of issues, but most lean towards:
- Preventing homeowners from altering a property (e.g. a building extension, house conversion);
- Restricting any buildings or other large structures from being built on the land; or
- Stopping businesses from operating on the land.
If you are looking to make changes to your property, it’s always worth looking at the land deeds to make sure that your changes follow any stated stipulations.
Why are restrictive covenants used?
Restrictive covenants attached to a property tend to be used to ensure that certain standards are being upheld by the residents, and housing developers will often add these covenants to a Transfer Deed to stop any work that has the potential to negatively impact on the neighbourhood.
This isn’t only related to structural work, however, as it can also include aesthetic items such as no satellite dishes on the front of the house, parking any towable vehicles in the front garden, and not allowing the garden to become overgrown.
Even if you own a freehold property, you will still have to follow a covenant if one is in place. With period homes, these are usually implemented to protect the look of the building and to minimise damage to historical structures but with newer homes, they can allow the housing developer to maintain some sort of control over the homeowners.
Restrictive covenant insurance can help protect property owners from potential legal action, costs, and financial losses in case of breaching a restrictive covenant, especially when the identity of the beneficiary is unclear or the covenant documentation is old or untraceable.
Restrictive covenants aren’t always a bad thing though, as they can block your neighbour from making changes to their own house that could affect the value and quality of your own land. But buyers should be made aware of any covenants in their conveyancing search.
Can I remove or change a restrictive covenant through the Land Registry?
While a covenant can impact the use and enjoyment of the land for a long time, they don’t have to be permanent. There are different ways that a covenant can be broken legally, and by checking the Land Registry documents you can see if changing any aspects of your land would breach it.
Checking who the beneficiaries of the covenant are and reading the whole Deed clarifies if the covenant is tied to the land or is a personal one. If so, that restrictive covenant is not tied to the land, but to the occupant/s at the time the covenant was written.
Checking back through a property’s history may also uncover if it has been removed previously. If the beneficiary of the covenant can be identified, you can either negotiate a release of the covenant or a variation of the deed containing the covenant and this will then be registered with the Land Registry.
There are certain criteria that a restrictive covenant must meet in order to still have a useful purpose. If you believe that the one on your property no longer has a function, you can potentially challenge it through the Lands Tribunal. Your solicitor will check whether any of the grounds contained in section 84 of the Law of Property Act 1925 can form the basis of a claim.
The Upper Tribunal can discharge or modify the restrictive covenants if:
- The restriction is deemed obsolete as a result of ‘changes in the character of the property or the neighbourhood or other circumstances’ (LPA s.84(1)(a)). This is usually the case where the wording of a covenant no longer applies to the present circumstances; or
- The restriction impedes the reasonable use of the land (LPA s.84(1)(aa)); or
- By agreement with the beneficiary of the restriction (LPA s.84 (1)(b)).
It can take a long time to get a restrictive covenant removed and it depends on whether the application is disputed, the timeframe usually being between 18 and 24 months.
Will having a restrictive covenant or restrictive covenant insurance affect my sale?
The presence of restrictive covenants can give rise to additional queries.
A common approach to dealing with restrictive covenants, particularly where the beneficiary of the covenant cannot be identified, is to obtain indemnity insurance against the risk of the restrictive covenant being enforced. This insurance will protect the owner of the house, mortgage providers and usually the successors in title and will cover the costs in relation to the enforcement of the covenant.
Your conveyancing solicitor can assist with this during the sale of your property.
Legal help with your restrictive covenant
If you require any advice about a restrictive covenant, whether as a buyer or as a seller, please contact Cunningtons solicitors’ litigation department. We have extensive experience of a wide range of property law issues, including property misrepresentation and restrictive covenants, and would be happy to advise.
Contact your local conveyancing solicitors
Click to find out more about our specialist property solicitors in Braintree, Brighton, Chelmsford, Croydon, Hornchurch, Solihull, and Wickford.
Hello, I would appreciate your advice on the below please. I am the owner of land that seems to have a restrictive covenant and I would like to know what the term ‘benefit’ means as that is not made clear from the below? Will I still be bound by the following restrictions, bearing in mind only the original 2 vendors, a pair of brothers are mentioned and not their successors, or subsequent owners, or occupiers? Both the original vendors/brothers died over 20 years ago. First brother had 2 children, second brother had none and his estate passed to the first brother. One child (son) inherited my side of the road and sold all their land immediately and this has since been inherited and then recently sold on again. The other child (daughter) inherited the other side of a B road with a 60mph limit, not touching my land but neighbouring I guess. The son who sold on is still alive I believe and has children I think but has moved away. The daughter who kept the land on the other side of the road, died recently, and her 3 children have inherited and they plan to sell on after probate is granted as they don’t want to run a smallholding anymore. Also, to make matters more complicated, various sections of the original farm, which is now called a different name from that of 1975 have been sold on several times and some is now rented out too. (It would be impossible to track down all owners of pieces of the original farm). The land I have inherited is still unregistered but has a Dii Land Charge against it. I will need to register it, but want to understand the situation I am in and whether I should do anything first? The part of the deed that concern me most is the following:-
4. ‘The Purchasers to the intent that the benefit of this covenant may be annexed to those parts of the Vendors adjoining property known as ‘…….’ as are capable of being so benefitted and so that the burden hereof may run with and bind so far as may be the property hereby conveyed and every part thereof into whosoever hands the same may come hereby jointly and severally covenant with the Vendors…… a) not to erect on that part of the land herby conveyed shaded blue on the said plan any form of dwelling and b) not to use the property hereby conveyed or any building erected thereon for any trade or business. ‘.
The other clauses only the ‘Purchasers’ are mentioned for boundary maintenance and ‘no rights to easement or light, or air that would restrict the free user from building on adjoining or neighbouring land’.
I guess what I want to know is does the ‘benefit’ pass to the successors of the original Vendors and to anyone who now owns any part of the original farm, or can this be challenged due to the ambiguity of the wording? In addition the land opposite me slopes downwards and away and tall trees and hedging have grown up so the neighbouring land wouldn’t even see if I or a subsequent owner did erect a house, if planning was even granted as countryside and outside settlement boundary. Would the current owners/defendants be able to enforce the covenant should they choose to? I have not built anything, but am concerned that when I wish to sell the covenant may put many people off. Business covenant affects whole property and not building a dwelling affects 2/3 of the land, but it wouldn’t be practical to build on other 1/3 as that is where the house already is. Also nature of area has changed in almost 50 years, much more busy and at least 10 different businesses in my road now, no new dwellings yet, but application is going to go in for several next door to me by new owners. Finding a starting point to move forward with this would be so much appreciated. Don’t think successors would all agree to signing a K11 as ones on other side of the road have already been approached and sadly not as keen as I hoped. What options are open to me?
Thank you for your comment.
We cannot provide specific advice on our website but can set out some general points which might be relevant considerations. Such guidance is not, however, a substitute for proper legal advice considered in the context of any particular case.
The “benefit” or “beneficiary” of any right is the person who is entitled to enforce that right. The basic position with restrictive covenants is that they much “touch and concern the land”. Restrictive covenants will attach to land, not individuals. If only individuals have the benefit of a right, only they can enforce it, normally as a matter of contract law. The wording is important, and it must be clear that the restriction was intended to benefit the “successors in title” or subsequent owners of the land. The date that the restriction was created, and how and when the land has been transferred can also relevant to the enforceability of any restrictive covenant. You mention a Land Charge, this is a way of protecting a restrictive covenant in unregistered land and therefore, it may be enforceable if this is what has happened. We would have to consider all of the relevant title documentation to be sure. A change in the character and nature of the area can also make restrictive covenants obsolete; it depends on what precisely restriction was intended to protect against at the time it was created and the amenity it intended to preserve.
The charges register on our register of title says there is a conveyance dated 25/4/1896 between two named individuals that “contains restrictive covenants but neither the original deed nor a certified copy or examined abstract thereof was produced on first registration”. There are no other documents on the Land Registry website. What does this mean – is there any way of finding out what the restricted covenant is?
Thank you for your comment.
We would need to see the title documentation and deeds that you do have to understand the position better, but short of trying to locate the document in someone’s papers, checking with any mortgage lender to see if they have it (which they don’t tend to these days) or getting a solicitor that may have been involved in past transactions in relation to the land to rummage through their deeds, it might be that the document simply cannot be found.
It would be worth checking whether or not the restrictive covenant was ever registered as a land charge. If it wasn’t, there might be scope to have the entry removed by the Land Registry.
Otherwise, and considering the age of the restrictive covenant (illustrating the fact that they do not just “go away” because they are old), this is precisely the sort of situation which could normally be addressed with a suitable indemnity policy, which are often comparatively cheap to put in place to protect against enforcement.