166 thoughts on “Restrictive covenants on property”
Hi I am interested in buying A property that has a restrictive covenant stating that the only property that can be built on the land has to be designed in accordance with the plans drawn by a particular architect – this architect is now deceased. The house was built in 1960, the covenant was written in 1937, Does this mean that the property can’t be altered in any way ( inside or out) given the original architect is dead?
This is a most unusual restrictive covenant. We suspect that the intention behind it was to ensure that further properties were built to the same standard and style as the architect in question.
However, it could be that this was just an attempt to secure further, and financial benefit, for the architect in question. It would be interesting to know who the beneficiary of the restrictive covenant is. We have dealt with a matter where there was a requirement to seek the approval of (and pay) a particular surveyor to approve changes to the property in question. It speaks volumes that the original owner of the land also owned the surveyors practice.
Fundamentally it will come down to the intention behind the restrictive covenant and what it was intended to protect.
Are there such things as personal covenants and do they expire with the death of the beneficiary? We are purchasing a plot of land with a covenant from 1903 The buyer is covenanted with her heirs and successes not to build on the land. The seller is the beneficiary of the covenant. The sellers name is recorded, but there is no mention of the sellers address or any dominant land that the covenant might be connected to, or that the benefit of the covenant should pass to the sellers heirs. Is it likely that this covenant is only for the personal benefit of the seller as an individual? If this is the case then would it be reasonable to presume that this covenant is unenforceable as the beneficiary will inevitably have died? Thank you for your help.
In short, as a matter of contract law, a covenantee (the person with the benefit of the restrictive covenant) and the covenantor (the person making the promise) have entered into an enforceable contract. So in simple response to your query “yes” personal covenants can exist. They are also not capable of binding land forever unless certain formalities are observed.
From what you have said it sounds like the restrictive covenant was made on behalf of the covenantor and their “successors in title”. A successor in title is the subsequent owner of the servient land.
As the restrictive covenant was made before 1st January 1926, it would be worth checking if it is binding on the land, as there are different rules that apply for covenants entered into before this date. In short, a buyer has to at least be expected to be aware of the restrictive covenant for it to be binding. It sounds as though it was registered later with the Land Registry if you are aware of it.
There must be a dominant and servient piece of land for a restrictive covenant to be binding. Whilst arguably rare, if a restrictive covenant is too ambiguous, or does not “touch and concern” the land on question, it might be unenforceable.
Please understand that this is not legal advice. We cannot provide advice on it website if only for the fact that we do not see the relevant documentation or know all of the relevant facts.
Hi We own a property, that has an adjacent field belonging to a property development company that manages and owns some retirement flats next door. It’s currently just grassed amenity space for the flats. The field has a covenant that states “not at any time to permit any buildings, caravans, tents, or other temporary structures or obstructions of any description or kind to be erected or placed on the said land…” we, and two other properties are beneficiaries of this coventant. We’ve been approached by them to discuss this as they’re looking at potentially developing it. How likely is it that they could have our covenant overruled? Are we better off getting what we can out of it? (we’d rather not have it developed, but the two other beneficiaries are less worried) Thanks Mike
The basic position is that a restrictive covenant is enforceable by the owners of the land it benefits forever, subject to the formalities having being observed in relation to it and a number of other factors that can make such restrictions potentially obsolete.
This is the sort of matter where a lawyer would struggle to give a definitive answer. What would be more likely is that you would be given an overview of the sort of issues that might arise in the context in question to enable you to make a risked based decision and form a view on deciding whether to accept something (usually financial) to do away with the restriction or not.
What shouldn’t happen (although it can), is for a challenge in the Tribunal to be made before there has been some attempt to negotiate and legal arguments raised in correspondence. It is really for the beneficiary of any restrictive covenant to say that it is enforceable and the person seeking to challenge it to raise in correspondence why it is not. In any contentious matter, it is generally better not to pre-emptively address arguments that the other side has not raised in case you give them ideas.
Whilst we cannot give legal advice on our website, you might want to ask the developer what their intentions are if you refuse and if they say they may proceed anyway or challenge it, ask them to provide the legal basis of that challenge. You would then have something a little more specific and helpful to a solicitor you instruct which could be responded to with more specificity. Otherwise the solicitor would really be speculating about anything that could arise or might become relevant.
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Hi
I am interested in buying A property that has a restrictive covenant stating that the only property that can be built on the land has to be designed in accordance with the plans drawn by a particular architect – this architect is now deceased. The house was built in 1960, the covenant was written in 1937,
Does this mean that the property can’t be altered in any way ( inside or out) given the original architect is dead?
Thank you for your comment.
This is a most unusual restrictive covenant. We suspect that the intention behind it was to ensure that further properties were built to the same standard and style as the architect in question.
However, it could be that this was just an attempt to secure further, and financial benefit, for the architect in question. It would be interesting to know who the beneficiary of the restrictive covenant is. We have dealt with a matter where there was a requirement to seek the approval of (and pay) a particular surveyor to approve changes to the property in question. It speaks volumes that the original owner of the land also owned the surveyors practice.
Fundamentally it will come down to the intention behind the restrictive covenant and what it was intended to protect.
Are there such things as personal covenants and do they expire with the death of the beneficiary?
We are purchasing a plot of land with a covenant from 1903
The buyer is covenanted with her heirs and successes not to build on the land.
The seller is the beneficiary of the covenant. The sellers name is recorded, but there is no mention of the sellers address or any dominant land that the covenant might be connected to, or that the benefit of the covenant should pass to the sellers heirs.
Is it likely that this covenant is only for the personal benefit of the seller as an individual?
If this is the case then would it be reasonable to presume that this covenant is unenforceable as the beneficiary will inevitably have died?
Thank you for your help.
Thank you for your comment.
In short, as a matter of contract law, a covenantee (the person with the benefit of the restrictive covenant) and the covenantor (the person making the promise) have entered into an enforceable contract. So in simple response to your query “yes” personal covenants can exist. They are also not capable of binding land forever unless certain formalities are observed.
From what you have said it sounds like the restrictive covenant was made on behalf of the covenantor and their “successors in title”. A successor in title is the subsequent owner of the servient land.
As the restrictive covenant was made before 1st January 1926, it would be worth checking if it is binding on the land, as there are different rules that apply for covenants entered into before this date. In short, a buyer has to at least be expected to be aware of the restrictive covenant for it to be binding. It sounds as though it was registered later with the Land Registry if you are aware of it.
There must be a dominant and servient piece of land for a restrictive covenant to be binding. Whilst arguably rare, if a restrictive covenant is too ambiguous, or does not “touch and concern” the land on question, it might be unenforceable.
Please understand that this is not legal advice. We cannot provide advice on it website if only for the fact that we do not see the relevant documentation or know all of the relevant facts.
Hi
We own a property, that has an adjacent field belonging to a property development company that manages and owns some retirement flats next door. It’s currently just grassed amenity space for the flats. The field has a covenant that states “not at any time to permit any buildings, caravans, tents, or other temporary structures or obstructions of any description or kind to be erected or placed on the said land…” we, and two other properties are beneficiaries of this coventant.
We’ve been approached by them to discuss this as they’re looking at potentially developing it. How likely is it that they could have our covenant overruled? Are we better off getting what we can out of it? (we’d rather not have it developed, but the two other beneficiaries are less worried)
Thanks
Mike
Thank you for your comment.
The basic position is that a restrictive covenant is enforceable by the owners of the land it benefits forever, subject to the formalities having being observed in relation to it and a number of other factors that can make such restrictions potentially obsolete.
This is the sort of matter where a lawyer would struggle to give a definitive answer. What would be more likely is that you would be given an overview of the sort of issues that might arise in the context in question to enable you to make a risked based decision and form a view on deciding whether to accept something (usually financial) to do away with the restriction or not.
What shouldn’t happen (although it can), is for a challenge in the Tribunal to be made before there has been some attempt to negotiate and legal arguments raised in correspondence. It is really for the beneficiary of any restrictive covenant to say that it is enforceable and the person seeking to challenge it to raise in correspondence why it is not. In any contentious matter, it is generally better not to pre-emptively address arguments that the other side has not raised in case you give them ideas.
Whilst we cannot give legal advice on our website, you might want to ask the developer what their intentions are if you refuse and if they say they may proceed anyway or challenge it, ask them to provide the legal basis of that challenge. You would then have something a little more specific and helpful to a solicitor you instruct which could be responded to with more specificity. Otherwise the solicitor would really be speculating about anything that could arise or might become relevant.