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.
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Hi, is it possible to have a covenant removed if it is purely for monetary gain by the seller, covenant was added after our offer was accepted.
Thank you for your comment.
There is no simple “yes” or “no” answer to this question but broadly, if the restrictive covenant does not “touch and concern” land i.e. its purpose was not to benefit other land and/or it was solely for the benefit of the original contracting party and not, for example, the current owner of the land then yes, it is capable of challenge.
A restrictive covenant cannot simply be removed, however. Either the agreement of the party with the benefit of the restriction is required or alternatively, the Court (or more likely the Upper Tribunal (Lands Chamber)) would need to make an appropriate order for HM Land Registrar to remove it following a formal application being made. Depending on the nature of the restrictive covenant, there might be other applications that could be made.
However, there may be a number of other aspects to the matter which would need to be considered carefully before deciding on what to do. For example, in some instances (but it does not sound likely in your matter) insurance may be available. This might very well be an option for restrictive covenants that are very old or might be considered obsolete. If the risk of enforcement of the restrictive covenant is insured against with a policy that can be passed to any future buyer, then it might not be necessary to challenge the restriction formally. It would normally be a condition of any such insurance policy that there has been no contact with the beneficiary of the restrictive covenant. If the owner of the land subject to the restriction had already approached the owner of the land with the benefit of it, without realising that it was an insurable risk at a reasonable cost, then they may have lost the chance to obtain such insurance.
What we find more unusual is that the restrictive covenant appeared after your offer was accepted. We presume you mean after the offer was accepted but before exchange of contracts. If this is the case, the restriction should probably have been pointed out to you by your solicitor so you could raise the point with the seller or negotiate.
The position would be quite different if the restriction appeared on the title to the property after exchange of contracts and was not “reasonably discoverable” on an inspection of the property, for example. It would be normal conveyancing practice to record in the contract of sale (normally the first page, if the Law Society’s standard conditions of sale and contract are being used) that the property was being sold subject to the restrictions appearing on the title to the property at a certain date and time. Aside from these, the seller normally agrees to sell the property “free from incumbrances”. Arguably, but we would need to consider the position in much more detail, there might be scope to bring a claim against the seller for breach of contract and/or misrepresentation on the basis that you were told that the restriction did not exist when in fact it did.
I’m a signature to an RC along with 12 other freeholders. Among other things the RC bans pets which is one of the main reasons I bought the property. Some freeholders want to allow pets and change the covenant, I want to resist. Who do I contact at your firm for initial advice and opinion which hopefully may be enough to dissuade the doggy lobby ?
Thank you for your comment.
You can pick up the telephone to us anytime, or send us an enquiry here …
However, subject to the precise terms of the lease, ultimately a dispute about the issue would end up at the First Tier Property Tribunal. Perhaps it would be more cost effective to try and agree with those that want to keep pets rules to follow.
We live in a house overlooking a building site where planning permission has been obtained for the building of three large detached houses.
Two of those houses are now nearing completion, the house nearest us has not been started yet.
We have recently bought the complete title deeds for this building plot and under restrictive covenants it states that only one large house and two smaller houses may be built on the site and also that the new house(s) should not interfere with the flow of light or air to windows, doors, etc. of buildings on the retained land (our house).
Would you take on our case after we supplied you with the relevant information?
Thank you for your comment.
We are an approachable firm and generally happy to consider matters on a no obligations, preliminary basis. We are not a firm of stuffy, out of touch and old fashioned solicitors. Having said this, we are still a business and if we didn’t charge for our work and expertise, we would not be around for long. We therefore have to draw the line somewhere.
Put another way, if you want to have a chat about the possibility of enforcing restrictive covenants, providing someone is around to do this (we are generally quite busy), this wouldn’t be a problem. However, we would probably need to spend a bit of time considering the precise wording of those restrictive covenants, take some detailed instructions and form a view of the position. This would likely take a bit of time and we would charge for that (but not before agreeing it charges with you).
The main problem with restrictive covenants is that they need to be considered in context and the time at which they were granted. For example, a very old restriction on land might become “out of date”. It might provide for a right of passage with “horse and cart” which can generally be considered a vehicle. Case law in respect of restrictive covenants can also sometimes be contradictory. Sadly, there is not always a black and white answer.
It is something we can help with and if you would like to get in touch, please feel free.