166 thoughts on “Restrictive covenants on property”
I am the freeholder of one of 13 cottages built in 2009. This cottage is on a private estate is subject to restrictive covenants as an over 55 development. We own freehold of our cottages and car ports, the remaining land or retained land was owned by the original developer but 10 years ago a private individual acquired it at auction when original owner went in receivership. This person is the rent charge officer to whom we pay ground rent and rent for an office the manager of the estate uses. This person acquired title to the deeds of transfer and also the name of “developer”. In the deeds it states that the “developer” can “change the estate as they think is necessary”. My simplification of the clause. This “developer” has decided to build two houses on the site on an area sold to us as “wild life area” basically a buffer we enjoyed to hide another estate and give us privacy. Planning permission was obtained as council will not listen to any legal argument we had. I accept that totally. This “developer” has no experience of such a task and instructed a builder to carry out the work. It has taken 3 years and still not completed. The question I would like answered is basically what legal addendum or amendment to our 13 deeds of transfer is this “developer” obligated to provide us with once the houses are completed and in effect join our estate ? He is flatly refusing to provide us with anything. The Land Registry documents we have still show an official copy of title plan showing on 13 houses not 15. I want something showing my freehold title is unchanged but has been changed of course by addition of two houses and removal of what was sold to me as a wildlife area of the estate. We still continue to pay full ground rent but do not enjoy any easement rights of the wildlife area we had enjoyed for over 10 years. The new houses apparently will adopt the same covenants we enjoy but that is not confirmed yet. I also want any successor to my freehold title to not have any doubts as to the legality of these changes ? I would appriciate any views you might have on this. Many thanks
Thank you for your comment. We are not really sure where to start with this as we are not that clear on the issues.
If the issue is can the freeholder owner of a piece of land (i.e. the new owner of where the houses are to be built on the retained land) build, then the answer is yes, subject to any restrictions preventing this. However, perhaps what you agreed to buy was a property during construction and was not yet competed. It is not unusual for a developer to retain the right to change the layout of a development. They might need to do this for a number of reasons. However, this agreement with you is likely to be personal and not bind any future owner of whatever the developer left behind in terms of freehold land that wasn’t acquired by any of the buyers.
We might be talking about a rent charge. This is something specific where the “developer” agrees to provide services in payment of a sum. it could be that we are talking about a development scheme, which again is a specific thing.
We are sorry but would need a lot more information before we could even provide general guidance on the things that might be relevant here.
With my agreement, a builder has applied for planning permission on my 1 acre garden and house site (my main home). However, owing to elderly parents who need help, I need to sell and move to be near them, and can’t wait for approval.
If I sold my house, either to the builder or on the open market, could I add a covenant to ensure no development could take place without paying me an agreed sum, and could that covenant be broken by anyone wishing to develop the site?
In short, is it possible to construct a bullet proof covenant in these circumstances?
There is generally no such thing as a “bullet proof” restriction, as this necessarily implies that every conceivable eventuality has been take account of and addressed with proper drafting in any document.
However, so far as there is a mechanism to oblige a buyer to pay something if and when planning permission is granted, we are not talking about restrictive covenants. Restrictive covenants are a means by which a landowner is prevented from doing something. What we are more than likely talking about are overage agreements.
An overage agreement is an agreement that attaches to land and in the event of something happening (like planning permission being granted) it triggers an obligation to arise (like paying a sum of money). These are complicated but in terms of drafting and effect but they are not uncommon.
The house next door to us has been knocked down and 6 flats have been built 3 floors high. The developers are now claiming they are going to fell trees in our garden (they claim the trees are on their side of the border) I bought the title deeds of their land online and the border shows a straight line as does the title deeds of my house. Their title deeds also show there is a covenant on the land restricting it to one single house of 2 storeys. Is there any thing I can do now?
Firstly, as to any boundary line, you will likely find that the red lines appearing on Land Registry title plans are “general boundaries” that have not been determined. Normally a surveyor is required to identify where the precise boundary line is. Obviously anything on the land your side of the boundary line belongs to you (subject to very esoteric points).
As for the restrictive covenant, there may very well be something you can do about the situation. If the restrictive covenant limiting the number of dwellings on the “servient land” (the land subject to the restriction – the word “tenement” is normally used in place of the word “land”) was intended to benefit the owner of your land (the “dominant land/tenement” – the land with the benefit of the restriction), then you may be able to enforce the restriction.
This would initially involve some investigation of the relevant documentation to establish you right to enforce the restriction and if there were grounds to do so, a consideration of what remedy would be appropriate. A remedy is what a Court or Tribunal would award to an aggrieved party to a claim or application. That could range from an order to demolish a building to simple damages to compensate the party that had suffered a loss by reason of the infringement of their rights.
If matters are left in abeyance, a right to enforce a restrictive covenant can be lost. Whilst not often successful, the person with benefit of a restrictive covenant can implicitly “acquiesce” to its infringement, providing a defence to the party that has breached it.
As you may have noted from other posts, we do have to qualify what we write on our website. It is not legal advice but simply guidance of some of the principles that might apply. Our comments should not be taken as legal advice.
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I am the freeholder of one of 13 cottages built in 2009. This cottage is on a private estate is subject to restrictive covenants as an over 55 development. We own freehold of our cottages and car ports, the remaining land or retained land was owned by the original developer but 10 years ago a private individual acquired it at auction when original owner went in receivership.
This person is the rent charge officer to whom we pay ground rent and rent for an office the manager of the estate uses. This person acquired title to the deeds of transfer and also the name of “developer”. In the deeds it states that the “developer” can “change the estate as they think is necessary”. My simplification of the clause.
This “developer” has decided to build two houses on the site on an area sold to us as “wild life area” basically a buffer we enjoyed to hide another estate and give us privacy. Planning permission was obtained as council will not listen to any legal argument we had. I accept that totally.
This “developer” has no experience of such a task and instructed a builder to carry out the work. It has taken 3 years and still not completed.
The question I would like answered is basically what legal addendum or amendment to our 13 deeds of transfer is this “developer” obligated to provide us with once the houses are completed and in effect join our estate ? He is flatly refusing to provide us with anything. The Land Registry documents we have still show an official copy of title plan showing on 13 houses not 15. I want something showing my freehold title is unchanged but has been changed of course by addition of two houses and removal of what was sold to me as a wildlife area of the estate. We still continue to pay full ground rent but do not enjoy any easement rights of the wildlife area we had enjoyed for over 10 years. The new houses apparently will adopt the same covenants we enjoy but that is not confirmed yet.
I also want any successor to my freehold title to not have any doubts as to the legality of these changes ?
I would appriciate any views you might have on this. Many thanks
Thank you for your comment.
We are not really sure where to start with this as we are not that clear on the issues.
If the issue is can the freeholder owner of a piece of land (i.e. the new owner of where the houses are to
be built on the retained land) build, then the answer is yes, subject to any restrictions preventing this.
However, perhaps what you agreed to buy was a property during construction and was not yet
competed. It is not unusual for a developer to retain the right to change the layout of a development.
They might need to do this for a number of reasons. However, this agreement with you is likely to be
personal and not bind any future owner of whatever the developer left behind in terms of freehold land
that wasn’t acquired by any of the buyers.
We might be talking about a rent charge. This is something specific where the “developer” agrees to
provide services in payment of a sum. it could be that we are talking about a development scheme,
which again is a specific thing.
We are sorry but would need a lot more information before we could even provide general guidance on
the things that might be relevant here.
With my agreement, a builder has applied for planning permission on my 1 acre garden and house site (my main home). However, owing to elderly parents who need help, I need to sell and move to be near them, and can’t wait for approval.
If I sold my house, either to the builder or on the open market, could I add a covenant to ensure no development could take place without paying me an agreed sum, and could that covenant be broken by anyone wishing to develop the site?
In short, is it possible to construct a bullet proof covenant in these circumstances?
Thank you for your comment.
There is generally no such thing as a “bullet proof” restriction, as this necessarily implies that every conceivable eventuality has been take account of and addressed with proper drafting in any document.
However, so far as there is a mechanism to oblige a buyer to pay something if and when planning permission is granted, we are not talking about restrictive covenants. Restrictive covenants are a means by which a landowner is prevented from doing something. What we are more than likely talking about are overage agreements.
An overage agreement is an agreement that attaches to land and in the event of something happening (like planning permission being granted) it triggers an obligation to arise (like paying a sum of money). These are complicated but in terms of drafting and effect but they are not uncommon.
The house next door to us has been knocked down and 6 flats have been built 3 floors high. The developers are now claiming they are going to fell trees in our garden (they claim the trees are on their side of the border)
I bought the title deeds of their land online and the border shows a straight line as does the title deeds of my house. Their title deeds also show there is a covenant on the land restricting it to one single house of 2 storeys. Is there any thing I can do now?
Thank you for your comment.
Firstly, as to any boundary line, you will likely find that the red lines appearing on Land Registry title
plans are “general boundaries” that have not been determined. Normally a surveyor is required to
identify where the precise boundary line is. Obviously anything on the land your side of the boundary
line belongs to you (subject to very esoteric points).
As for the restrictive covenant, there may very well be something you can do about the situation. If the
restrictive covenant limiting the number of dwellings on the “servient land” (the land subject to the
restriction – the word “tenement” is normally used in place of the word “land”) was intended to benefit
the owner of your land (the “dominant land/tenement” – the land with the benefit of the restriction),
then you may be able to enforce the restriction.
This would initially involve some investigation of the relevant documentation to establish you right to
enforce the restriction and if there were grounds to do so, a consideration of what remedy would be
appropriate. A remedy is what a Court or Tribunal would award to an aggrieved party to a claim or
application. That could range from an order to demolish a building to simple damages to compensate
the party that had suffered a loss by reason of the infringement of their rights.
If matters are left in abeyance, a right to enforce a restrictive covenant can be lost. Whilst not often
successful, the person with benefit of a restrictive covenant can implicitly “acquiesce” to its
infringement, providing a defence to the party that has breached it.
As you may have noted from other posts, we do have to qualify what we write on our website. It is not
legal advice but simply guidance of some of the principles that might apply. Our comments should not
be taken as legal advice.