166 thoughts on “Restrictive covenants on property”
Hi, I live in a detached bungalow with an attatched double garage which was built in 1980’s, however it also has a covenant stating it must be kept as a garage. My property is set back from the main road with a long private driveway so it cant be seen from the road and has plenty of parking space. I would like to convert the garage to a 1 bedroom ‘annexe’ with its own entrance. I wouldn’t change the size and i would keep the double door frontage. Is there anyway the covenant can be lifted.
Thank you for your comment. Yes, restrictive covenants can be “lifted”, discharged or otherwise declared as no longer applying. However, if an application to the Upper Tribunal (Lands Chamber) (which ultimately decides such things) is made, it is often more sensible to seek to vary the restriction, as this is generally easier to achieve. You make a good point, which is that the garage is not changing size and there is plenty of parking (presumably on the property). What therefore is the restriction intending to protect against and for whom? This is the fundamental question in all matters that involve restrictive covenants. There are a number of considerations to take account of, not least who has the benefit of any restrictive covenant and whether or not they would be minded to enforce it, how the nature of the property and area has changed and the extent to which it can be said that the restriction is still required to protect that which it was created for, before deciding to commit to a Tribunal application but the short answer is that yes, such restrictions can be removed or varied in some circumstances.
Looking through old documents I can see that there was a covenant on my land when it was sold to the previous buyer. When I bought it, it was sold “free from incumbrances” and there is no mention of the old covenant in my conveyance documents. Am I tied to the old covenant, even though I didn’t know about it?
We are not certain that you did buy your property completely “free from encumbrances”. That is something a seller might struggle to promise for various reasons and they would not want to be held in breach of contract if the property was encumbered.
A property is normally sold with “full title guarantee” or “limited title guarantee”. Full title guarantee means that the seller is selling the property free from encumbrances (i.e. rights a third party might have over the property), other than those that they do not know about or could not reasonably be expected to know about. This is normal, but it doesn’t mean to say that the beneficiary of a restrictive covenant (which we assume is the case) could not still enforce it if it does still apply. Put another way, buying a property “free from encumbrances” is a contractual agreement between you and the seller. There are different considerations as to whether or not a restrictive covenant might still be binding, but if it is not expressly noted on the Land Registry title documentation, and you had no notice of it or could not reasonably be expected to discover it, this can be relevant to this point.
I own a property with a planning covenant that says you cannot live in the property full time and are restricted to 48 weeks occupancy per year. It’s in a holiday location and the covenant was a planning condition in 2005. There are 41 houses on the complex all with the same covenants. About half of them have people using as their main home and living their full time., therefore in breach. The covenant is generally unenforceable. Would you take on this case to see if the council would lift the covenant to allow us to move and live there full time and legally?
It isn’t clear whether or not it is a planning restriction or a restrictive covenant, enforceable by those that benefit from it.
It sounds like the scenario that arose in Stafford Flowers v Chine Management Company Ltd [2017].
In that case, when planning permission was granted, it was on the basis that a restrictive covenant would be imposed on the land/properties in the development restricting their use to “holidays” (for want of a better phrase and a more precise explanation of the facts of the restriction).
Owners were living full time in some of the properties. Mr Flowers obtained “permission” from the planning authority to do this and then applied to the Upper Tribunal to discharge/modify the restriction.
The matter ended up in the a Court of Appeal and whilst Mr Flowers was able to show that the reasonable use of the land was impeded by the restrictive covenant, he failed to prove that there were no benefits to those persons entitled to enforce the restriction.
The Court of Appeal said that in discharging the restrictive covenant, this would almost certainly lead to others trying to do the same. This would undermine the purpose of the restrictive covenant and change the nature of the development. Mr Flowers lost on this basis.
What comes out of this judgment in particular is the following:-
1. Each case is fact specific and depends on the nature and character of the development. For example, if everyone in the development was using the property as their full time home, would the same decision had been reached? If the purpose of the restriction was to benefit those who wanted to own holiday homes in that development and the Court was not prepared to take away the rights of those that were entitled to enforce the restriction, turning what was intended to be a holiday development into a permanent residential estate, what would the position be of everyone with the benefit of the restriction neither abided by it or wanted it? It is doubtful such a situation would ever arise in the Courts, as if the beneficiaries of the restriction were happy to release it, then this could potentially be done by agreement. It does raise an interest point, however, turning on the question of acquiescence of the breach.
2. As has been confirmed in other case law, you generally have a better chance of modifying a restrictive covenant than having it discharged entirely. If it can be shown that the proposed use of the land would not undermine the purpose of it, then a variation of it might very well be granted.
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Hi,
I live in a detached bungalow with an attatched double garage which was built in 1980’s, however it also has a covenant stating it must be kept as a garage. My property is set back from the main road with a long private driveway so it cant be seen from the road and has plenty of parking space. I would like to convert the garage to a 1 bedroom ‘annexe’ with its own entrance. I wouldn’t change the size and i would keep the double door frontage. Is there anyway the covenant can be lifted.
Thank you for your comment.
Yes, restrictive covenants can be “lifted”, discharged or otherwise declared as no longer applying.
However, if an application to the Upper Tribunal (Lands Chamber) (which ultimately decides such things)
is made, it is often more sensible to seek to vary the restriction, as this is generally easier to achieve.
You make a good point, which is that the garage is not changing size and there is plenty of parking
(presumably on the property). What therefore is the restriction intending to protect against and for
whom? This is the fundamental question in all matters that involve restrictive covenants.
There are a number of considerations to take account of, not least who has the benefit of any restrictive
covenant and whether or not they would be minded to enforce it, how the nature of the property and
area has changed and the extent to which it can be said that the restriction is still required to protect
that which it was created for, before deciding to commit to a Tribunal application but the short answer
is that yes, such restrictions can be removed or varied in some circumstances.
Looking through old documents I can see that there was a covenant on my land when it was sold to the previous buyer. When I bought it, it was sold “free from incumbrances” and there is no mention of the old covenant in my conveyance documents. Am I tied to the old covenant, even though I didn’t know about it?
Thank you for your comment.
We are not certain that you did buy your property completely “free from encumbrances”. That is
something a seller might struggle to promise for various reasons and they would not want to be held in
breach of contract if the property was encumbered.
A property is normally sold with “full title guarantee” or “limited title guarantee”. Full title guarantee
means that the seller is selling the property free from encumbrances (i.e. rights a third party might have
over the property), other than those that they do not know about or could not reasonably be expected
to know about. This is normal, but it doesn’t mean to say that the beneficiary of a restrictive covenant
(which we assume is the case) could not still enforce it if it does still apply. Put another way, buying a
property “free from encumbrances” is a contractual agreement between you and the seller. There are
different considerations as to whether or not a restrictive covenant might still be binding, but if it is not
expressly noted on the Land Registry title documentation, and you had no notice of it or could not
reasonably be expected to discover it, this can be relevant to this point.
I own a property with a planning covenant that says you cannot live in the property full time and are restricted to 48 weeks occupancy per year. It’s in a holiday location and the covenant was a planning condition in 2005. There are 41 houses on the complex all with the same covenants. About half of them have people using as their main home and living their full time., therefore in breach. The covenant is generally unenforceable. Would you take on this case to see if the council would lift the covenant to allow us to move and live there full time and legally?
Thank you for your comment.
It isn’t clear whether or not it is a planning restriction or a restrictive covenant, enforceable by those that benefit from it.
It sounds like the scenario that arose in Stafford Flowers v Chine Management Company Ltd [2017].
In that case, when planning permission was granted, it was on the basis that a restrictive covenant would be imposed on the land/properties in the development restricting their use to “holidays” (for want of a better phrase and a more precise explanation of the facts of the restriction).
Owners were living full time in some of the properties. Mr Flowers obtained “permission” from the planning authority to do this and then applied to the Upper Tribunal to discharge/modify the restriction.
The matter ended up in the a Court of Appeal and whilst Mr Flowers was able to show that the reasonable use of the land was impeded by the restrictive covenant, he failed to prove that there were no benefits to those persons entitled to enforce the restriction.
The Court of Appeal said that in discharging the restrictive covenant, this would almost certainly lead to others trying to do the same. This would undermine the purpose of the restrictive covenant and change the nature of the development. Mr Flowers lost on this basis.
What comes out of this judgment in particular is the following:-
1. Each case is fact specific and depends on the nature and character of the development. For example, if everyone in the development was using the property as their full time home, would the same decision had been reached? If the purpose of the restriction was to benefit those who wanted to own holiday homes in that development and the Court was not prepared to take away the rights of those that were entitled to enforce the restriction, turning what was intended to be a holiday development into a permanent residential estate, what would the position be of everyone with the benefit of the restriction neither abided by it or wanted it? It is doubtful such a situation would ever arise in the Courts, as if the beneficiaries of the restriction were happy to release it, then this could potentially be done by agreement. It does raise an interest point, however, turning on the question of acquiescence of the breach.
2. As has been confirmed in other case law, you generally have a better chance of modifying a restrictive covenant than having it discharged entirely. If it can be shown that the proposed use of the land would not undermine the purpose of it, then a variation of it might very well be granted.