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?
A restrictive covenant can prevent owners from changing certain aspects of their
property as they are written into the property deeds.
They 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
- Blocking 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 tend to be used to ensure that certain standards are being upheld by the residents of the property, and housing developers will often add these covenants to a Transfer Deed to stop any work that has the potential to negatively impact 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 still will 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 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.
Can I remove or change a restrictive covenant?
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 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 misrepresentation and restrictive covenants, and would be happy to advise.
I have purchased a property alongside a railway which is under a restrictive covenant that I wasn’t fully aware of I’ve been back and forth in legal fees and consultations about the removal of the covenant as it stopped me from building on the land to which I received planning permission from I have been in talks for now 6/7 years and I’ve loaded out on a lot of money from lawyer fees in law of tort however the beneficiary was not found legally liable for this and though we have been in conversation they did not remove the covenant instead I posed conditions which have not been met and they want to charge me more money to separate the lines of property by contracting out a engineer to check this I feel like I’m being cheated financially and through this legal battle and need help
Thank you for your comment.
We are sorry to hear of your circumstances.
The restrictive covenant should really have been brought to your attention by your conveyancing solicitor.
We are not certain of what it is you are saying regarding the piston, but if the matter has been through the Court/Tribunal and you were unsuccessful, that may very well be the end of the matter for now.
We would need to review everything before we could realistically even form a preliminary view of your position.
Hello, I wonder if I could get some advice.
We live in a very quiet area of 10 new builds and roughly 20 original builds by the same building company. They’re all open plan houses as in no gates, very green areas etc.
My husband and I are both medics and sadly one of my husbands patients, we believe, has followed him home and attacked our home with paint etc and vandalised it.
My husband works away a lot and I’m home alone with a new baby, I’m currently not sleeping at all (excluding new baby) as I’m afraid it’s so easy to access our property and this person will come back. We’ve added extra security measures etc but I would like to put fencing/walls with a gate around our property.
In our contract in states we have a restriction period of 5 years which is so to end, but our restrictive covenant of any fencing, walls, gates, plants higher than 1m is not permitted.
Is there anything at all we can do about this?
I have wrote to the building company to explain why I would like it and all of our neighbours have agreed and also wish for gates and fences etc.
I’m losing a lot of sleep and currently don’t feel same in my own home.
Many thanks
Thank you for your comment.
We cannot give specific advice on our website, just general guidance on points of law which may or may not apply in the circumstances.
We are of course horrified to hear of what has happened and we would probably recommend you tell the police (so far as you have not already).
As for a restrictive covenant, it is the purpose for which a restrictive covenant is granted in the first instance that is important in determining whether or not any particular course of action would impinge on that.
It sounds to us that the purpose of the restrictive covenant was to maintain a certain look or feel for the area, preserving property values and amenity for residents. It is therefore arguable the extent to which the erection of security measures (unsightly or otherwise) were intended to be curtailed.
Clearly a one-off incident such as this does not necessarily demonstrate that there is a change in the character of the area making the restrictive covenant redundant or “obsolete” but at the same time, clearly you and your neighbours are in agreement that it is not unreasonable to protect one’s property and family; it is hard to see such a desire being unreasonable. The fact that your neighbours’ attitudes accord with yours (and probably most people) might, however, be indicative of a change in the nature or character of the area.
We would need to consider the wording of the restrictive covenant, the parties that are able to enforce it and a bit of the history of the development. After this, it would probably be worthwhile approaching those people with the benefit of any restriction and seeing if they would agree to your proposals. If not and if the facts of the matter were such to justify it, there could be scope to apply to the Upper Tribunal to vary the restrictive covenant on the basis that agreeing to maintain a higher wall is unlikely to be of any detriment to the beneficiaries of the restrictive covenant and that maintaining the restrictive covenant is of no practical benefit to those beneficiaries.
Good morning,
I live on a residential estate and our homes have a restrictive covenant in place which prohibits the homes being used for anything other than a single private dwelling.
There has been a planning application made to the council to use a recently sold property as a childs care home. Wouldn’t this be classed a business use? Which is against the restrictions? Also, is a childrens care home classed as a business? Thank you for your help.
Thank you for your comment.
Planning policy and the implementation of it is not generally concerned with the legal aspects of any particular property. Put another way, the local authority is not generally going to take into consideration the existence of restrictive covenants or the ability of the applicant to implement their proposals from a legal point of view. All the planning authority is generally concerned with is to ensure that planning policy is not infringed.
We cannot comment on whether or not a children’s care home is classed as a business or not, mainly because it is a fairly esoteric query that we do not immediately know the answer to. What we would say is that there is a distinction to be had between something being classed as a business from a planning policy point of view and from the point of view of the enforcement of a restrictive covenant.
With a restrictive covenant, it is necessary to consider what it was the restrictive covenant intended to protect against at the time it was created. Generally, a prohibition of business use is because neighbours might not want to have to put up with trades that might interfere with their “quiet enjoyment” of their land.
I have owned a freehold detached house on a double plot for the last 25 years. I lived in it for 20 years and now its been rented for the last 5 years. There is a covenant that says that I cannot build a house on the second plot. In your previous comments you mentioned that a indemnity insurance should be ok if the purchaser is ok with it. I plan to build a second house on the second plot. I was thinking of splitting the title deeds as there would be two houses. Does this remove the covenant as its a new title ?
Thank you for your comment.
Splitting land which is subject to a restrictive covenant would not generally dispose of it. Broadly, just because ownership of the land now vests in more than one person because it has been split does not mean that the restriction is not still needed to protect against a particular circumstance or has become obsolete.
It is necessary to consider the wording of the restrictive covenant and understand what it was intended to protect at the time it was granted before an assessment of its continued ability to be enforced by anyone can be undertaken.
If a restrictive covenant was placed on a piece of land by the housebuilders, in this case not to build any other buildings, would the neighbours be able to enforce this. The property was built in the 1970’s and the original housebuilder has been bought out since.
Assuming that they didn’t have an issue with the removal of the covenant, would the neighbours be able to block this, or enforce it?
Thank you for your comment.
We can only provide general guidance and without seeing the precise wording of any restrictive covenant and understanding who it intended to benefit (which is sometimes clear for the wording itself), we cannot really say the extent to which a neighbouring land owner might be able to enforce the restrictive covenant.
On the assumption that the restriction was entered with a view to protecting other owners from excessive buildings being constructed, then arguably they would be entitled to enforce the restrictive covenant. However, sometimes developers will impose restrictive covenants on properties that they sell in order to protect their own position. For example, it would not be uncommon for a developer to restrict a buyer’s right to make changes to the property for a period of time. The premise behind such a restriction might be to protect the look and feel of a new development so as to ensure that full value of the properties is realised as the developer sells them.
Understanding what it is that any restrictive covenant is seeking to protect as at the date it was granted is key to assessing the continued enforceability of it and who has the benefit of it. Just because an original covenantee dies, is bought out or otherwise cannot be located is not generally relevant to matters. Once granted, the persons with the benefit of the restrictive covenant from time to time have the right to enforce it. A restrictive covenant attaches to land, and not individuals or companies that own that land.
Hello, I am just going through planning to build a house for myself that is situated between my parents house and a neighbouring property (the land belongs to my parents). On searches with the land registry a covenant has come up that was imposed by the local council in 1983 preventing the erection of a dwelling on the land. There is no real reason why a house can’t be built on it but is this unusual for councils to come along and place covenants on plots of land?
Could this be a kind of green belt covenant?
Any help is greatly appreciated
Thank you for your comment.
It is not unusual for the owner of a larger piece of land to impose a restriction on the number of dwellings that can be constructed on a part of the land that they are selling. In fact this is probably one of the more common restrictive covenants that we see.
Our neighbour applied 1 yr ago for a 6 m rear extension and a loft dormer conversion on the semidetached house. We are the impacted neighbour. It was rejected once, reapplied. It provided a false certificate of ownership, tried to encroach on our land. We object that we’ll lose light, privacy, it is overbearing, we have concerns that it will affect the house integrity, being done on DIY basis. The distance between the centre of the living room window and boundary is 2.5 m and the height (of rear ext) not specified on plans, we estimated 3.6 m. The decision is pending. No test regarding the daylight has been carried out. We then found out our (former council) house has restrictive covenants ‘excepting and reserving the light and air to any building to be erected conveyed so that all privileges of light and air now or hereafter to to be enjoyed over any parts of the property hereby conveyed’. How this can help us? Is the covenant outdated (was issued in 1980)? Can it stop the rear or most important, the loft conversion? What does it mean by light and AIR? Going to court is probably a long, expensive process, and the result cannot be guaranteed. Is it worth it? What advice can you give us, please? Thank you in advance.
Best regards
Thank you for your comment.
Your query is a little too specific for us to be able to respond to on our website. We would need to investigate the situation and consider the relevant title documents (“deeds”, if you like) before we could form a view of matters.
What we can say is that planning policy and processes are separate to the legal aspects of property ownership. Put another way, your objections to the planning application appear perfectly valid, but the local authority is not generally going to be interested in legal matters, such as an encroachment/trespass into other land or the existence of restrictive covenants. They will focus solely on planning policy.
In relation to the restrictive covenant, these do not become “out of date” per se. Sometimes they can become obsolete due to changes in the nature and character of the area, but there is no defined period of time after which a restrictive covenant no longer applies, assuming that it has been correctly registered and is binding.
Restrictive covenants are often the source of extensive debate over their meaning. For example, a very old restrictive covenant might expressly reserve a right for a horse and cart to pass over the land. A horse and cart can generally be considered these days to be a “motorised” vehicle of some sort but what is most important to interpretation is to consider what it was at the time a restriction was entered that it intended to protect.
As mentioned, we are unable to make any real comment without considering the matter in context, which would mean looking at the history of the property and considering the relevant title documents. However, simply from the wording you quote, it does seem to suggest that the construction of further buildings may have been envisaged, providing that these do not interfere with the light and air passing into the property/land with the benefit of the restrictive covenant.
We buy 4 bed detached houses to be used as residential children’s homes for a maximum of 2 children. A house that we currently intend to buy has a restrictive covenant in the deeds stating no trade or business allowed.
On houses that we currently rent for these purposes that have covenants planning has been granted by the local council to change the use from C3 dwelling to C2 business, with no issues. Our question is, when looking to buy properties now they all seem be coming up with covenants on them. We don’t make any structural changes to the properties as they will be used just as a residential properties but due to the fact they are residential children’s homes we have to change planning to a C2.
Please can you advise if we need to take action on these covenants?
Thank you for your comment.
Matters of planning policy and implementation are separate to any legal aspects relating to any property and it’s use. Put another way, the existence of planning permission does not generally have any impact at all on the enforceability of restrictive covenants.
Sometimes, when an application is made to the Upper Tribunal to vary the terms of a restrictive covenant, the fact that planning permission has been granted can sometimes be a consideration, but this is generally inly going to be relevant to framing the intentions of the covenantor, that is the owner of the servient land subject to the restriction.
It is not often straight forward or easy to dispose of a restrictive covenant that was imposed with a view to binding all future owners of land. Normally the most cost effective solution is to agree a payment to the covenantee, this is the owner of the dominant land with the benefit of the restrictive covenant, in exchange for a deed of release.
If there are grounds to challenge the restrictive covenant, it is also sometimes very worthwhile to think about the extent to which the Upper Tribunal should be asked to effectively do away with it, or merely amend it to enable the covenantor to proceed with their plans.
Hello, September 2021 I bought a detached freehold Pub ( built 2007 ) . One side of my property there is a rugby club changing rooms and the other side is a cricket club changing rooms . I do have a restrictive covenant on my pub saying i can only sell it as a pub. The Rugby Club and cricket club have put in bars and both sell draught beers the last six months. I did not realise until recently when I saw barrels of keg beers delivered to them. they did have a covenant not sell beers but I did not realise they did it. so it is to late to stop them.
My business is really finding it very difficult to survive. I ‘ve had a heart attack recently and trying to sell up but I cant due to my restrictive covenant.. Is it possible I could get it lifted so they can carry on but I could sell my business.
Thank you for your comment.
On the assumption that your land has the benefit of a restrictive covenant which you are able to enforce, then you may be able to take steps to obtain an injunction the clubs in question. As for whether or not the restrictive is binding on you will broadly turn on the same points.
Whether or not a restrictive covenant has become old or obsolete, and therefore capable of being the subject matter of an application to the Property Tribunal to have it removed, will depend primarily on the purposes for which the restrictive covenant was granted in the first place and whether or not there have been changes in the character of the area in question. We would need to consider the relevant title documentation and take some detailed instructions on the history of matters before we could form an opinion on the matter.
Hi I’ve inherited my parents property and hoping to sell but have noticed a restrictive covenant in the deeds stating no trade or business allowed .As a lot of properties in the area have changed from residential to business would an indemnity insurance be a good idea to appeal to both residential and business buyers in case of a possible breach of covenant?
Thank you for your comment.
Whether or not insurance is a good idea or not will really depend on what your buyer is prepared to accept and whether or not any buyer’s mortgage lender would accept it.
Old and obsolete restrictive covenants are fairly regularly insured against. However, it really comes down to what anyone buying the property is prepared to agree.
I inherited a cottage from my mother which I am now planning to sell. The Land Registry document prominently features a restriction on building on part of the land. Digging back in time through the Deeds turns up a Deed of Partition from 1899! This indicates an area in the corner of the front garden next to an alleyway between the partitioned properties. But no reason is given for the restriction.
I’m concerned that having this ban on development (even in an area unlikely to be built on) could affect the value. How easy is it to remove such a covenant? I assume it’s obsolete but that’s hard to prove if there’s not a reason – or person who knows – why it’s in place?
Thank you for your comment.
How easy or difficult it is to ‘remove’ a restrictive covenant will depend on a whole number of circumstances. Further, if there needs to be an application to the Tribunal to do this, there would be a cost implication in terms of legal fees.
It sounds as though the restriction is very old. Sometimes insurance is available to cover the risk of enforcement. Because restrictive covenants do not simply disappear after a period of time, as you have now discovered, very old restrictions can remain binding, or at least are a relevant consideration for a buyer in case they are enforced. Whilst you can never be sure whether or not someone with the benefit of a restrictive covenant might not try to enforce it at some point in the future, often very old and/or obsolete restrictions can be insured against. This sort of insurance policy is fairly commonplace in conveyancing and normally the cost of such a policy would be a fraction of the cost of trying to remove the restriction via a Tribunal application. As long as such a policy would be acceptable to a buyer and any lender (and they usually are) that normally is all that is required to proceed with the sale.
We suggest you have a chat with your conveyancing solicitor with respect to the availability of insurance in your circumstances
Many thanks, Mark,. Very useful.
When I sold a freehold house I had a restrictive covenant put on the large rear garden, stating that if any of the land was ever sold off for building purposes, I would be entitled to 50% of the current market value of that land.
The house / garden in its entirety is currently being sold to a new owner. How do I ensure that the covenant continues or is this just something that will be picked up by the purchasers solicitor through Land Registry searches.
Thank you for your comment.
That does not sound like a restrictive covenant. A restrictive covenant is a requirement for the owner of the land subject to it not to do something (positive obligations do not pass with land).
What it sounds like has been agreed is some sort of overage agreement. These are not uncommon but can cause headaches for property owners. In short, an overage is normally a right for a seller of land to ask for something more in the future. For example, a sale of development land at a particular low price might be subject to a promise on the part of the buyer that if they obtain planning permission to develop, something more is paid to the buyer. That promise is normally protected with a restriction registered at the land registry.
We personally would not leave matters to chance and would make contact with the seller now. Whilst there is every possibility that a buyer of the land would identify the matter and want to see evidence that any restriction protecting the overage agreement has been complied with, and may even want it removed, things can sometimes go wrong and it is not guaranteed that it will be picked up.
I own a property with a restricted covenant which means I cannot sell without express permission of the named individual on the covenant.
We are estranged and there is no communication between each party – How would I go about resolving this matter?
Any hints or tips?
Thank you for your comment.
That sounds like a most unusual restrictive covenant indeed. We do not think we can even begin to provide general guidance on the position without spending a bit of time trying to understand the situation.
We suggest that you get in touch with us in order to provide more detail, so we can consider the matter with you and how it may be resolved.
About 15 years ago we purchased a plot of land (3 acres) adjacent to our current property from a neighbour. The land is classified as agricultural land and we agreed we wouldn’t build on it and a covenant was added.. We bought it to protect the land from development ourselves. However, our circumstances have now changed and we would like to build a bungalow in 1/3 of the land to move into ourselves and sell the current house we live in. The lady we bought the land off passed away a number of years ago. Does the restrictive covenant die with her or do her beneficiaries now own the covenant?
Thank you for your comment.
A restrictive covenant, if correctly drafted and registered at the Land Registry will be binding on all future owners. It does not disappear when the original parties pass away. A restrictive covenant attaches to land and not to an individual.
You will probably find that on reviewing the wording of the restriction, it expressly states that it is intended to benefit the retained land and bind all future successors title (or wording to this effect). In layman’s terms, this means that it attaches to the parcels of land in question for the benefit of the land and it’s future owners.
It might be the case that the neighbour’s estate is prepared to agree to a new building but they do not have to.
I am thinking of buying a site which is adjacent to my own property. The other side of the site is more fields (no more houses). We have no plans to build another property beside us as it would restrict our view. However, the vendor wants to sell the site with a covenant restricting the building of any dwellings. Would this stand forevermore? The only thing that worries me is if, when I am dead and gone, my children or grandchildren (if I ever have any) want to build a property – would the covenant still be in place in 100 years time or does it only usually stay in place for a set number of years? If it was still in place in 100 years, for example, would my grandchildren have to contact the vendors’ descendants to get the covenant removed?
Thank you for your comment.
The short answer is “yes”. A restrictive covenant does not expire after a period of time but it does depend on its wording and whether or not it can be said to have been intended to bind future successors in title (“owners”, in layman’s terms).
Whether or not an old restriction remains binding on future successors in title is often the subject of litigation. Restrictive covenants can become obsolete, depending on the circumstances of the matter but this is not generally something that should be relied upon when deciding whether to proceed with a purchase or not.
My daughter is looking to buy woodland in order to plant more native trees and run woodland crafts courses and yoga retreats (requiring yurts for accommodation). Every woodland she has looked at to date comes with a covenant prohibiting use for commercial purposes. Running woodland craft courses and yoga retreats seems a fair use to out the land, in part so it’s not just left to rewild but actually contributes to a local economy and community. Any thoughts on the dream?
Thank you for your comment.
Whilst it sounds like what your daughter has planned would be a blissful place to go (and something that most solicitors would probably benefit from), if there is ever any doubt as to a restriction on the property or land, it is a risk to proceed.
Restrictive covenants are not easily avoided. What it comes down to is the intention behind the restriction and what is trying to be protected against. Even on a narrow interpretation, charging someone that attends a retreat is arguably a commercial purpose. Whilst we cannot provide specific guidance on our website, and in particular would need to consider the wording of the restriction and plans involved, if there is scope for argument (and there usually is when it comes to restrictive covenants) it is normally advisable to approach the person with the benefit of the restrictive covenant and ask the question, before committing to a purchase.
We are buying a property (A) with restrictive covenants which is adjacent to another title deed (B) that is owned by the same Vendor. The original restrictive covenants prohibit the Vendor from erecting any buildings. The Vendor is now trying to sell the us the A as “sale of part” (retaining only tiny strip of land) claiming that they need access to the Service Media. There seems a number restrictive covenants in TP1 specifically related to us maintaining that Service Media as wells as full indemnity.
1. Could selling this as a ‘sale of part’ be a way for them to remove the existing covenants and include additional covenants to be able to build houses on the adjacent land B?
2. Do the existing covenants transfer to a Buyer with a ‘sale of part’ transaction?
Thank you for your comment.
We cannot provide specific advice on our website or indeed anything that could constitute legal advice that could be relied on. This is primarily because every situation will be different and a proper consideration of the matter would be required. Your comment epitomises this, as it raises a lot of potential points which would need to be considered in detail.
You should definitely raise these issues with your conveyancing solicitor. You should not proceed with a purchase if you are not certain that you are able to do what you plan with the land or property. In particular, retaining a strip of land does seem to be a bit of a concern. It is not uncommon for a “ransom strip” to be retained by a seller. That might be a piece of land required for building later on. By retaining that particular area, the seller may be intending to prevent building in the future.
In respect of restrictive covenants, the attach to land. Splitting the land between different ownerships does not bring a restrictive covenant to an end. The extent to which any restriction is binding on future owners of the land depends on quite a number of different factors. These include the purpose for the restriction in the first place, whether or not it was intended to bind future successors in title and whether or not the land with the benefit (not the burden) of the restriction still has a legitimate interest to protect.
If the covenantor is the person selling the property, there would be scope for negotiation. That may be preferable before committing to the purchase than pre-emptively trying to find a way around a particular situation that could arise in the future.
We would struggle to even provide general guidance on your position without considering all of the documentation and circumstances in detail. However, you should definitely discuss this with your solicitor before proceeding. Further, do not expect your solicitor to be psychic or to be able to know precisely what you need advice about. If you have specific concerns, raise them and ask for advice; this is what your solicitor is there for. Buying property is a big capital investment for most people. If there are any doubts or concerns, if these cannot be adequately addressed, it is often better to be disappointed and walk away than potentially buy property that could cause you difficulty in the future.
I purchased a property in June 21 and have only recently found out that the seller placed a restrictive covenant with this wording ” not to carry out any external alterations, extensions or additions to the property without the written consent of the owners (from time to time) of the Retained land.”
I am concerned that this will affect the resale value of the property.
My solicitor at the time did not point out the restrictive covenant, nor did the seller or the estate agent .
I paid the market value for the property.
What are my chances of getting this covenant moved?
Thank you for your comment.
A restrictive covenant cannot simply be removed. The basic position is that the agreement of the person with the benefit of the restrictive covenant needs to be reached. There are some other circumstances in which it may not be enforceable, such as if it has become obsolete. It is unlikely that this is the case here.
It appears to us that what has happened is that this was a sale of a property which was built by the seller on existing land, and in selling the land imposed a restriction preventing any further building on it, so as to benefit the retained land. This is not an uncommon thing to do.
It does raise the question as to whether or not your solicitor should have pointed this particular issue out to you. If they have not, there may be a basis of claim in negligence.
The basic position in relation to any professional negligence claim is to firstly establish what the duty of care was. The duty of care will be determined in part by the scope of the retainer. The retainer is the contractual agreement that you and your solicitor reached when you instructed them about what they were going to do and advise you on. However, even then there is a general duty on a solicitor to advise on risks that are not obvious to a client. It may be the case that they failed to advise you on the risk of this restrictive covenant applying.
Whilst we cannot give specific advice on our website and can really only provide general guidance as we do not know the precise circumstances of any matter, we suspect that you would have been provided with a transfer to sign, either called a TR1 (or more likely a TP1) and it is the transfer that would have contained the restriction on further building. Whether or not this is something your solicitor should have pointed out will, as mentioned, depend on what your solicitor agreed to do for you, but there was probably an obligation to, at the very least, draw your attention to this particular restriction.
If you would like to consider the matter in more detail, please do feel free to get in touch.
Hello,
We bought a property where the deeds were lost. Due to this the conveyancer could not tell us about a restrictive covenant which later our neighbour told us.
We want to do loft extension but the covenant in our neighbours deed which we thinks applies to us mentions that the owner of estate (he and his ancestors are dead) set up and additional layer of surveyor.
My question is how can we proceed with this? We applied for planning permission as suggested by our covayencer and it was approved but our neighbours are planning something to stop construction. How can we avoid this?
Thank you for your comment.
The first point that arises out of your comment is the extent to which your conveyancing solicitor should have identified the missing deeds and suggested a suitable insurance policy for you. Missing deeds insurance is sometimes available depending on the circumstances and you should check to see whether or not this was obtained on your behalf.
Whether or not the same restrictive covenant for your neighbour applies to you would of course be contingent on establishing whether or not there were any deeds to this effect. It may be the case that, with some investigation, such deeds could be identified, but on the assumption that such a restriction does apply, whether or not it is enforceable will depend on the circumstances of the matter.
A restrictive covenant is always granted to protect against a specific thing. Due to changes in the character of the property or neighbourhood, restrictive covenants can become obsolete. This is a point worth checking.
We are surprised that your conveyancing solicitor advised you to apply for planning permission as normally the scope of their retainer would be limited to advising you on the legal aspects of your purchase as opposed to recommending anything in particular.
If you would like us to look into the matter in more detail for you, please do feel free to get in touch.
Hi,
We are purchasing a house with a large garden area, a small part of this is private garden we can erect fences etc. The larger chunk do own has a covenant stating access is granted to 14 other houses and we are not to erect fences or sheds in the large area.
Each one of the 14 houses has the same, one small prviate area and the huge area is all split up and owned by each house but each has a convenant with access rights for all the other houses.
I would like to fence our whole garden area and remove this covenant. Do i stand a chance?
Thank you for your comment.
Whether or not a restrictive covenant is enforceable, or has become obsolete and capable of being removed from the title to any property, is very fact specific. If the purpose of the restriction is to ensure that access to common parts shared by numerous people is maintained at all times, and a fence would stop this, then it may be a stretch to say that a fence would not interfere with this right and be in breach of any restriction.
We would need to consider all of the relevant documents and take some instructions before we could give any specific advice. We can’t give legal advice on our website, just an overview of the legal principles that may apply.
Hi – We are interested in purchasing a new build property local to us on a small development. The property is classed as an affordable home with discounted price to allow local people who may not otherwise be able to afford to buy, the chance to own their own property.
We are interested as my partner has lived in the area all his life and we live in rented. However I notice on the Developers application form it specifies that one of the criteria is that the property will not be permitted to be let out as a rental property once purchased. Although we plan to live in the house I am concerned that should our personal situation change ie: we have to move away for work on a temporary contract and need to rent our property whilst doing so, is this ban on the future owner renting the property legally enforceable or can it be challenged?
Also if we did purchase it and then one day sell it, would that ban on letting the property continue or affect the resale, making it harder to sell?
Thank you for your comment.
It isn’t clear from what you write precisely whether or not the condition you refer to already exists, or is going to be imposed once the property is sold. On the basis that this is a new development, and it appears that the developer has mentioned it in the application form, we will assume that it is a restriction that will be imposed on completion and registered at the Land Registry accordingly.
It is not unusual for developers to impose restrictions on the future use of a property. There could be any number of reasons for this. However, there is not a “list” of what is or is not a reasonable and therefore enforceable restriction. Any restrictive covenant must be considered in context and this is going to be fact specific and depends on what it is intended to protect. Likewise, even if the restriction is not enforceable for any reason, it does not stop the covenantor from taking steps to enforce it, through the courts or otherwise, depending on the circumstances.
Whilst we cannot give specific advice on our website, even if we had checked the documentation in more detail, the chances are that our advice would be to treat the restriction as enforceable when deciding whether to proceed or not. It is a very rare situation where conclusive advice can be given as to whether or not a restrictive covenant is enforceable; normally there are numerous arguments both ways because the matter is always very fact specific.
Unless you are content to risk being drawn into a dispute in the future, irrespective of what arguments exist as to the enforceability of any restriction, it would probably be best to try and negotiate with the seller/developer and if that did not work, think carefully about proceeding.
We live in a house that was built as part of a new build estate (~50 houses) in the early 1990’s. The estate was built with plenty of green space (a park) and wide grass verges. Our house has a particularly wide verge which constitutes party of our garden however a wall was built well inside the verge to enclose our garden. So in effect I have a large expanse of lawn that belongs to us but according the freehold we can’t do anything with it apart maintain it. We would like to incorporate this lawn into our garden and move the wall closer to the verge. Does this constitute a restrictive convenant? Clearly y when the estate was built they wanted lots of greenery to grow, 30+ years later we have lots of greenery and I have a peice of land/lawn that I maintain but can’t use! It is also becoming increasingly difficult to maintain due to a hedge and I have no incentive to look after it properly. Any thoughts welcome? Thank you
Thank you for your comment.
We would need to consider what the title deeds say in terms of any restrictions, but in theory, if someone owns freehold land with no restrictions on it then they can do what they want with it, subject to building and planning regulations and not causing a nuisance to neighbours etc.
If you would like us to consider your title deeds and provide advice, please do feel free to get in touch.
Hi I am buying an unregistered piece of land and there is permission to build 2 bungalows on it. At the moment there is only one on there built 40 years ago. We plan to build another. The deed says that any building plans must be approved by the vendor or his surveyor. What if they refuse our plans or ignore our request. The document does not mention that they can’t refuse reasonable requests.
Thank you for your comment.
If you have not yet committed to purchase the property, we suggest you discuss this particular point with your solicitor. If the person with the benefit of the restrictive covenant is still about, there could be some scope to ask the seller to come to an agreement with them about removing it.
The precise terms of the restrictive covenant would need to be considered before we could provide any advice and as part of that we would need to consider what the restrictive covenant was intending to protect at the time it was granted. It strikes us that it was always envisaged that there will be a maximum of two bungalows and that perhaps what is thought to be protected is against overcrowding. It could be the case that what is to be protected is the amenity value of the area and the look of the properties. It may therefore be the case that depending on the purpose of the restrictive covenant there is scope to argue that reasonable requests cannot be refused.
If you would like to consider the matter in more detail, please do feel free to get in touch.
Thank you.
My lease has the restricted covenants as FIRST PART and SECOND PART, what is the significance of these parts? and why break them into these parts and can there be more than 2 parts?
Thank you for your comment.
We cannot really say much about your lease without having first read it, but the chances are there is probably little of significance to the headings in any lease.
I’m having to sell my home because of divorce. I have just gone through the Title Deed and found a restrictive covenant regarding no building of extensions or alterations to the property. We built an a single storey utility/office extension without checking for restrictions. How serious is this and what complications would this create with the sale. Thanks in advance for your reply.
Thank you for your comment.
It is not possible for us to give specific advice on our website and we are not able to realistically advise you on how serious and what complications could arise by reason of the breach of the restrictive covenant that you refer to.
We would need to consider the matter in significantly more detail and in particular in context. We need to consider what the purpose of the restrictive covenant was when it was originally granted to see whether or not it could still be considered valid and binding. We need to consider who the person with the benefit of the restrictive covenant is and whether or not they have the ability or are likely to enforce it. We also need to consider what has happened generally with the property and in the area. Restrictive covenants can become obsolete over time and it depends on whether or not there have been changes to the neighbourhood.
What we would suggest is that you enquire with your conveyancing solicitor whether or not insurance could be available in the circumstances. If there has been a potential breach of a restrictive covenant but it has never been enforced, a buyer and their mortgage lender may be prepared to accept insurance to proceed with the purchase. We suggest that your conveyancing solicitor considers this before making any approach to the person with the benefit of the restrictive covenant as any such approach could invalidate any insurance.
Hi I’ve just purchased a property on an old estate and there are several restrictive covenants, I don’t have a problem with most accept this one . I live at number 6 and have a large front garden and it obviously refers to my garden, I wanted to put some form of hard stand down to park two cars I don’t have a problem approaching the original estate management for permission but should I restrict myself to some form plastic suitable grid under the ground to let the lawn grow through.
Covenant 8
1984. (Applicable to plots 6 and 7 only) to maintain as a lawn only the area between the front wall of the building or the paving stones (as the case maybe) and the boundary between plot 6 and 7
Thank you for your comment.
We cannot provide specific advice on our website, so cannot say whether or not your proposals would fall foul of the restriction. The comments on our website should not be considered a substitution for properly and fully considered legal advice.
If the purpose of the restriction you mention was to ensure that the area in question remains a lawn and is not used for any other purpose, we would question whether or not it would be wise to park vehicles on it. However, 1984 was a different era and there were not as many vehicles on the road which all need to be parked somewhere.
When it comes to restrictive covenants, in the absence of an express agreement from the landowner that has the benefit of the restriction, to determine whether or not they are enforceable necessarily means considering the purpose for which they were created in the first instance. Some restrictions can become obsolete over time, due to changes in the nature and character of the area. If there is an amenity value to protect both at the time the restrictive covenant was created and that has not changed, the prospect of challenging the restriction is limited.
We are in the process of buying a house and have just found out that there is a restrictive covenant from 1893 and 1949 saying that no trade or business whatsoever can be done on this property. I’m a health practitioner and work from home seeing clients on a one-on-one basis. I have no staff and plan to work from the home office in the garden of our new property. seeing 4-5 clients per day on three to four days a week. The home office can be approached via a shared driveway. I don’t want to fall out with our new neighbours but want to continue working from home. Renting an office space elsewhere is not an option. What are the chances for the covenant to be removed or would an indemnity insurance protect me if the neighbours would object to people walking down the driveway to the home office? Or would it be better to not go through with the purchase under these circumstances?
Thank you for your comment.
We can only give general guidance on our website, and cannot give specific advice about what you should do.
Restrictive covenants can become obsolete over time due to changes in the character and nature of the area. Your particular point became a topic of debate during the Covid-19 lockdowns, when people were forced to work from home. The increased prevalence of homeworking generally does mean this is still an issue but there is not a straightforward answer. Clearly a trade which is noisy, dirty or otherwise might cause a nuisance to neighbours is more likely to draw objections than a trade which has no material impact on those with the benefit of the restriction. Fundamentally, it is necessary to consider in detail what it is the restrictive covenant was seeking to protect against at the time it was granted and consider whether or not that protection is still required. There could be other reasons why it may not be effective which should also be checked. You should probably also discuss the matter in more detail with your solicitor, especially if indemnity insurance is an option for you.
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.