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I have exercised my right to buy as a secure tenant with a Local Authourity. A Freehold property, where I live. They own the two adjoining properties.
I have been sent deeds to sign, within which are restrictive covenants by the transferee, there are eleven in total. One of which causing me some concern.
“If the property has an “open plan” frontage (but not otherwise) not without the written consent of the Seller to change the character or appearance of that part of the Property but to maintain the existing grass trees bushes and other plants in that area in substantial the same condition as that in which they were habitually kept prior to the date of the transfer.”
To remove a clump of blackeyed Susan’s and replace with tulips, or replace an existing shrub, replace a rose bush presumably means I need written consent of the Housing department area officer? I tried to have it amended, to wording in keeping with the general ambiance/vista of the adjoining properties .
The Council has stated that they will not accept any changes to their standard transfer deeds. Under Right to Buy a dwelling where I reside, are all transfer deeds standard for a Local Authority and are not negotiatable to the property to which it relates ?
So does this mean I have no negotiation rights on this restrictive covenant and simply have to accept it as it is worded?
Do the Local Authority have a duty to exercise a contract that is reasonable and fair? Is this restrictive covenant reasonable and fair? It to me as a potential freeholder to impact on my freedom to enjoy my front garden spontaneously in choosing to plant tulips or change an existing small shrub, with something more pleasing. Is such wording within the powers vested to a local Authority?
I do not have a problem with the wording not to change the character of the front garden.
Thank you
Thank you for your comment.
That is a lot of questions but in short (and we cannot comment on obligations arising under any right to buy scheme, as we are not certain of this) the terms that a seller chooses to sell on are up to them.
When it comes to restrictive covenants, it is the underlying thing that is being protected which is important to consider. Clearly here what is being protected is the look and feel of the area. Obviously restrictive covenants would be unworkable (or ridiculously long) if they said precisely what flowers or shrubs can or cannot be planted. This is often where the arguments in such matter lie, in that it is open to interpretation.
It might be the case, but we would need to consider the position in much more detail (so please do not consider this legal advice) that in order to maintain what you are expected to, it will require the expenditure of money. If this is a pre-existing restrictive covenant (i.e. it is not a new restriction that you are being asked to enter into) it could be that the restriction is not directly binding on you. Positive covenants do not generally bind successors in title (i.e. those buying an existing property where the covenant exists already). It is more complicated than this (as sadly everything to do with land law is) but this might be a question to raise with your conveyancing solicitor. However, if it is you being asked to enter into the restrictive covenants, this is probably only going to be important to a subsequent buyer.
It does sound as though you may not have much a choice in the matter, other than to proceed or not.
Hi – extremely interesting thread. We live in a town with a restrictive covenant that prevents the construction of a second dwelling on large plots. Although some in-fill has taken place in previous decades, the current beneficiary of the covenant has a blanket ‘ban’ on all 2nd dwellings on such plots (e.g. 0.5 acres or more).
The covenant states ‘save with the written consent of the Corporation (which shall not be unreasonably withheld)
The blanket ban seems to be ‘unreaonable’ since these very large plots can readily accept a 2nd dwelling with materially affecting the overall character of the area.
Is there a legal basis to potentially challenge the blanket ban, on the grounds that the covenant beneficiary is acting in an ‘unreasonable’ manner. In past cases they seem to have relied on the fact that they have very deep corporate pockets and individual home owners do not?
Thanks.
Thank you for your comment.
We think it is first necessary to draw a distinction between planning policy and restrictive covenants. This is mentioned as you have suggested that an entire town is subject to a restrictive covenant, which sounds very unusual to us.
What we are considering is the enforceability of a restrictive covenant, as opposed to the beneficiary’s approach to matters or policy (although this can have a bearing on matters, for example, when it comes to questions such as “acquiescence”). The first step is always to consider what the restrictive covenant was intended to protect at the time that it was granted. If that protection is no longer required or has become obsolete, for example, due to the changing character of the neighbourhood (like the building of other properties) it may no longer be enforceable. There might be other technical reasons why the restriction cannot be enforced.
It is often better to look to vary a restrictive covenant, than seek to have it disapplied altogether. Often there can be a balance struck between protecting what was intended and enabling a land owner to proceed with their plans.
Thanks for this very interesting article and discussion thread. My neighbour is looking to sell a section of their garden for development of a new freehold self contained house. Theirs is a corner plot at the end of a terrace and the new house would be built to form the new end-of-terrace. Where the house faces the street its front elevation will line up with the rest of the terrace and on its side elevation it will be built up to the boundary which is the edge of the pavement of the public highway. Planning Permission was obtained but in the title there are some restrictive covenants created in 1890 by the land owner at the time when selling to the property developer. It sets out rules about the plots being used for houses and no public houses/industry; that no house should be worth less than £2000; that fences are to be erected and maintained etc. Apart from the fence maintenance these covenants appear to be obsolete because Planning Laws have taken over most of the land use & development rules this document is trying to cover. However there is one covenant which says that no structure, other than the boundary fence, is to be built within 6 feet of the boundary – which seems to mean that noone can build the house has planning permission!? This is despite other local properties filling in similar plots on the same street (no idea if that has been done ignoring these rules or if they don’t apply). If this can be overcome we would be interested in buying the site from our neighbour – is there any way that this covenant can be varied given that nearly 140 years have passed? The original land owner was a company that no longer exists but there is possibly a “descendant” company which still exists. How do we go about varying the terms of the title?
Thank you for your comment.
Yes, an obsolete restrictive covenant can be varied. It is generally better to try to vary, than have declared as no longer binding, a restrictive covenant. It all comes down to what the restrictive covenant was intended to protect against.
You should also be aware that there is not real correlation between the implantation of planning policy (and the granting of planning permission) and the legal rights that effect any particular land.
You might also need to consider the Party Wall Act if foundations of a certain depth are to be built within a certain distance of any other boundaries or structures.
There is a restrictive covenant on my small estate pertaining to caravans. A non-attached neighbour has a caravan in their private parking space, which I have full view of. Can I ask the management company, who are also owners of the estate’s communal areas and have responsibility for maintaining them to address the breach of covenant? or do I need to seek a neighbour enforcement?
Thank you for your comment.
The person that benefits from the restrictive covenant (normally the owner of the dominant land) has the right to enforce it.
It may be that the owners of the estate have effectively delegated their ability to a management company to take steps to enforce restrictive covenants or it could be that the management company has that right already and there is a contract or other legal requirement on them to take these steps for the benefit of the estate.
Realistically, we would need to consider the wording of the restrictive covenant, understand who it is supposed to benefit and consider the legal position between the estate owners and management company, otherwise we are simply speculating as to the position.
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.
I own a property with a large garden and would like to sell off part of my garden as a building plot but my deeds have a restrictive covenant stating “not more than one house shall be built on any lot”
This is a covenant that was put in place in 1935 by the vendors of the land and the building developers.
If I go ahead and obtain planning permission will a potential purchaser need indemnity insurance regarding the covenant?
Thank you for your comment.
Just because part of the land that a restrictive covenant applies to is sold does not mean that the restriction will not continue to apply to each part of the land. Obtaining planning permission will also not have any real effect on matters. The Local Authority is charged with implementing and ensuring observance of planning regulation. It is not generally interested in legal issues restricting the use of the land.
Insurance might be available for a buyer that wants to build on the land, but it would likely depend on a number of factors. One important aspect of such indemnity insurance is normally the extent to which the beneficiary of the restrictive covenant has been put on notice of any breach or otherwise contacted. Most of the time, an insurer would think twice about issuing a policy when the beneficiary has been contacted or is aware of matters. Even if a policy is issued, a buyer and their mortgage lender (if any) would have to be satisfied with the terms of that policy and the circumstances generally before deciding whether or not to proceed. Of course, a buyer does not “need” insurance per se. They may be prepared to take a risk and proceed without it. On the assumption that the restrictive covenant is noted against the title of the land, then the buyer’s solicitor will almost certainly identify this and advise their client as to its existence.
It should also be noted that a rare exception to the “buyer beware” rule when it comes to property transactions, is that a seller is required to disclose “latent defects in title”. A failure to do this can result in a misrepresentation claim against the seller later, when the issue is discovered (if for some reason it is missed by the buyer when considering whether or not to enter into the contract to purchase the land). The requirement to disclose title defects was explained in the case of SPS Groundworks & Building Ltd v Mahill [2022]. In that case, an overage agreement existed and details of it were included in the auction pack, but the seller did not check this. Despite the auction brochure saying that the seller should read the auction pack, the Court held that this was not sufficient to discharge the seller’s duty to disclose the existence of the title defect. A title defect is broadly anything which has a negative impact on the legal rights of the owner of any property or land that cannot be discovered with reasonable inspection. Whilst this case is arguably restricted to just auction sales, the principles do apply generally, so caution is advisable if there is a defect or encumbrance, especially one that might not be readily identifiable.
Hello, my brother and I recently inherited a property jointly from our mother. Unfortunately the deeds have become lost. We have the previous owners deeds however and there is a successive restrictive covenant on part of the land, limiting building and business use for 80 years. We are 50 years into that timeframe. The current owner is now very elderly and seriously incapacitated and not expected to last very long. Her 3 children have said they would be prepared to sign a ‘deed of release’ for the covenant when their mother dies as they no longer live locally and plan to sell all their mother’s land land soonest, when she passes away. How would I go about accurately drafting/wording such a thing for them to sign and when would I need to get them to sign it? When they are her executors, or as owners? Would I need a legal witness and would this then legally remove the restrictions from our property please? Timing presumably would be crucial also?
Thank you for your comment.
The first thing to check is the extent to which the restrictive covenant is binding. This will depend on the date when it was made and whether or not it can be said that when the property was purchased, it was brought to the attention of the buyer.
On the assumption that it is binding (which it probably is if you are aware of it), an express release from a restrictive covenant is always best. This can only be agreed between the current owners of the dominant and servient land. If the current owner passes away, and it is in the interests of their estate to do so (bearing in mind that the value of the dominant land can be negatively impacted by the agreement to release a restrictive covenant benefitting it – which is often one of the reasons why a financial incentive is often demanded) then it would be something the deceased owner’s personal representatives could agree, subject to having the authority to do so (normally a grant of probate or letters of administration).
Such a release is rarely a complicated document to prepare. It must always be by deed (as property rights need to be dealt with in this way generally) and for a deed to be effective, it must be properly witnessed.
The deed would then be registered at the Land Registry. It also does not “remove” the restrictive covenant. What the Land Registry will do is record the deed on the tittle to the property with a wording along the lines of “by a deed dated xxx made between xxx and xxx, the restrictive covenant referred to at entry xxx was purported to be released”. Once a restrictive covenant is recorded against the title to a property, it stays there for ever, but the deed of release can be relied on as proof that it is no longer enforceable.
Hello, we own some land next to our house, there is a restrictive covenants as follows:
The right to pass and repass with or without vehicles at all times over any such accessway designated from time to time by the Transferor and which falls within the Retained Land as affords access to and egress from the Property to the nearest public highway for the purposes of using the Property as garden land in connection with the Transferees ownership of the adjoining residential dwelling.
With it stating use as garden land, would that mean we could not build a dwelling on the land? Thanks
Thank you for your comment.
We cannot provide specific advice on our website, not least because we would need to consider the title deeds in particular and what has occurred in practice before forming a view of matters.
What we can say is that if a right over property exists and the person that owns that property is proposing to interfere with that right in some way, then this can lead to arguments and problems. In broad terms, if a person benefits from a right of way over land, to effectively take that right of way is not going to be pleased about this and could devalue their own property.
What appears to be your query is whether or not by reason of the fact that the right of way leads to land defined as “garden” whether or not it means that the land can only be used as garden land. As mentioned, we cannot be specific about this, but it strikes us that a description of a piece of land in title deeds might be relevant when it comes to considering some aspects of the use of the land but fundamentally, if there is no restrictive covenant or other right precluding the building on the land in some way, then the fact that it might have historically and to date been a garden is unlikely to mean that it cannot be built upon. As mentioned, we would have to consider the title deeds and history of use before forming a view on this.
Hello, we purchased a freehold house last year and had to agree to a deed of covenant with an estate management company. We pay them regularly for maintaining the general housing estate area but we really see them. Most of the residents feel its a con. Is there any recourse we can take? A fence next to the dual carriageway was has been broken for months now, and I previously had to chase down the removal of a skip from outside my home after they left it there for months. The latter they claimed they denied any knowledge of works on our street despite sending us a headed letter warning of us the works! Considering 60 houses are paying them for this shoddy service seems like a large swindle to me!
Thank you for your comment.
This sounds like an estate rentcharge, which is different to a restrictive covenant. An estate rentcharge is a sum payable to someone for the provision of services. It is more of a positive covenant in that it requires the covenantor to do something (i.e. pay towards the services).
Rentcharges are something that mortgage lenders are not generally happy about and can therefore have an impact on the saleability of a property. This is because if a rentcharge is not paid, the rentowner has statutory certain enforcement procedures which are considered “draconian”. This includes being able to create a leasehold interest over the freehold property. This is a point your conveyancing solicitor should have advised you about but the chances are that this particular rentcharge is “acceptable” because certain variations to the default statutory position have been agreed historically. Therefore, even if you think that the services are not being properly provided, do think twice and get legal advice before even considering withholding payment.
In terms of what can be done if a rent owner (this is the person to whom the rentcharge is paid) is not providing their services, this is not an easy question to answer but in short, there is not much that can be done. This is something the Government recognises and has pledged to help freehold owners with. On November 2023 the Government indicated that it would, when there is sufficient Parliamentary time, look at providing homeowners subject to a rentcharge the ability to challenge the charged or replace the rent owner. More information can be found here: Freehold estates – GOV.UK (www.gov.uk)
I own an equestrian property and one covenant listed by the seller was only to use the property for equestrian , agricultural or a
single domestic residence. It was purchased with planning permission for a small house with an equestrian tie, which we subsequently built, however, a building on the property looks to be eligible for a class Q conversion. Is there any way I can do this?
Thank you for your comment.
Planning law and legal rights and restrictions in relation to property do not normally have much of a
bearing on each other.
We would really need to consider what is proposed in much more detail before we could advise as to
whether or not a restrictive covenant would “bite” on those proposals.
Hi – I have a freehold property but a restriction that I can’t have a hedge or fence around the front of my property , whilst you can’t advise on single cases, is this something that is common and how would I get it removed? If I was successful in removing it, I’ve read it can take up to 2 years? Is that correct?
Thank you for your comment.
“Removing” restrictive covenants isn’t really what happens. They are normally declared obsolete or
varied.
We’re not sure whether or not it is fair to say that it is a common restrictive covenant, but it isn’t
unusual. The extent to which a restrictive covenant no longer serves a purpose, and therefore might be
obsolete, depends on what the restrictive covenant was created to protect in the first place. It would
not be unusual for a developer of an estate to want to ensure that all of their properties had a certain
look or character, but the extent to which such a restriction would serve any further purpose by the
time the developer has sold the last property is questionable. It really is all about thinking about who
benefits from the restriction and why.
As for the time it takes to address a restrictive covenant, this isn’t really something that has a set time
limit. There are ways to address the risk involved ranging from an agreement with the beneficiary of the
restriction, insurance (sometimes) to applications to the Tribunal. A Tribunal application does take time
but there is not a “fixed” or “standard” time limit.
We currently own a property. The deeds we have date back to 1960 and contain outdated terms and conditions. In the Conveyance it states no new dwellings to be built on any plots on the estate aswell as many other restrictions we have looked up the estate owners and company and both are not active company’s is there any advise you can give to help get something in writing as we’d like to submit drawings to council for a new dwelling
Many Thanks
Thank you for your comment.
Whilst it is always worth considering whether or not the beneficiary of a restrictive covenant would
enforce it, it is not always “safe” to assume that it will not.
Restrictive covenants can become outdated and obsolete. However, the question as to the extent to
which it can be argued that it no longer applies depends on the purpose for which it was registered in
the first instance. For very old restrictive covenants, where there has been a substantial change in the
nature of the area in question, this point is often nebulous and regularly debated and argued about. In
short, if the restriction is no longer required to protect that which it was initially intended, it may be
obsolete. It his is often not a simple question to answer.
Anyone can apply to the council for planning permission. This isn’t in itself relevant to the enforceability
of any restrictive covenant. Just because the council implements planning policy in a particular way
does not change the legal position when it comes to the property or land in question.
I live in a neighborhood with a restrictive covenants. The developer stated he was okay how we utilize our property as long as the Village is okay with it. Is the developer able to make modifications to the restrictive covenants if they no longer own majority of the lots or who is able to make the changes?
Thank you for your comment.
One of the ways to dispose of a restrictive covenant is to come to an express agreement with the
beneficiary of it. The beneficiary of it will be the owner (or owners) of the dominant land (the land
which benefits from the restriction). A release or variation of the restrictive covenant is always possible
between the parties but often the beneficiary will want something in exchange (normally money),
however, you could get lucky.
It is important to check who the beneficiary of the restrictive covenant is, this should be reasonably
clear from the wording of it. It is not unusual for developers to put in place restrictive covenants that
not only benefit them whilst they sell off the properties, but which will benefit all future owners. It
might therefore be the case that there are quite a few beneficiaries to consider and reach an agreement
with. It is extremely important to do this.
By way of example as to how important it is to check who the beneficiaries of a restrictive covenant are,
we also specialise in professional negligence claims. We were instructed by a property owner to pursue
a claim against their previous solicitor. Our client had wanted to build a second dwelling on their plot
but there was a restrictive covenant saying that only one dwelling was allowed. Our client paid the
developer to release them from the restrictive covenant and the solicitor at the time failed to point out
to the client, before parting with a fairly significant sum, that the local residents association also
benefitted from the restrictive covenant. This was even stated in the wording of the restriction itself!
Building work started and our client, having spent a small fortune to date, came close to being injuncted
(legally “prevented”) from continuing and even demolishing what had been built so far. Needless to say
the claim against the solicitor was successfully settled in favour of our client. The moral of the story is to
consider in detail who might be able to enforce a restrictive covenant before deciding to risk potentially
breaching it.
If an agreement is reached with the beneficiary of the restrictive covenant, then it will need to be
recorded at the Land Registry. An agreement between the parties to release, vary or not enforce a
restrictive covenant will be personal to the parties that agree this. Unless this agreement is registered
with a suitable deed at the Land Registry, it will not bind future successors in title (i.e. the future owners
of the property. Whilst fine for the time being, when it comes to sell the servient land (that is the land
subject to the restrictive covenant) a buyer might be put off knowing that there is a breach of it which
might in the future be enforced.
I am in the middle of buying a house. I want to convert it to a HMO. There is a covent saying that it is only allowed to be used as a single family dwelling home.
Can I get around this.
Please advise
Thanks
Thank you for your comment.
We cannot give specific advice on our website. In terms of broad and general guidance, whether or not
a restrictive covenant is enforceable or continues to apply depends on a whole host of matters.
What we would say is that if this is your firm and settled intention, you should obtain legal advice on the
point before you commit to purchase the property. You might want to also consider approaching
someone that can advise on planning issues, as sometimes a local authority will have to grant a licence.
Turning back to restrictive covenants, it also isn’t the case that there is always a clear “yes” or “no”
answer. More often than not the restriction in question and ability to “get around it” is a matter open
to debate. Once a restrictive covenant is created, the basic position is that it will bind the owner of the
servient land forever. Sometimes these become obsolete, however. A proper consideration of all the
facts is necessary but the fundamental question is always what it was that the restrictive covenant
intended to protect when it was created and is that requirement still there.
Good morning,
We have been in the process of purchasing a house for almost a year now. It has been hell!! The seller is splitting the land into 3 parts. The garage is being converted into a small bungalow, we are buying the main house with half an acre and the owner is giving her daughter the rest of the land (around quarter of an acre). The whole process has been a joke the entire way through, as the seller first of all wants to sell all 3 parts at the same time, so we have had to wait for a buyer for the barn. Next up, the house is on a part of land that the buckland estate owns (buckland estate own acres and acres of land around these parts), so we have been told that we have to wait for the deed to be updated and then approved by land registry then signed by the estate and their entire family (20+ members) before we can complete. Now I’ve spoken to land registry and they have informed me that their lawyers seem to think that we shouldn’t actually need to wait for the deed to be changed before we can complete our part of the purchase, so I put this to our seller and she said “As I understand it all, as the deed carries the ‘single dwelling covenant removal’, which is why we have had to wait.”
Is this correct? Or are they speaking rubbish and legally we can indeed complete without having to wait for the deed to be approved by land registry? Bearing in mind land registry have had these 3 applications since last July and they still haven’t completed them!! I would like some clarity on this, as the seller and her solicitor haven’t been very clear or helpful at all with this entire sale. I have a feeling that we are being made to wait for this all, as she still wants to complete everything at the same time, as it will save her in tax. Another point, was that back in September, we were told that the sellers solicitor would change the TR1 to a TP1 so we could complete without having to wait for someone to buy the barn. So being lead to believe, if we paid the £600 to update the TR1 to a TP1 we would rapidly speed up the process of our purchase and be able to move very soon after. A few weeks later the seller found a new buyer for the barn and change it back to a TR1 without informing us and since then we’ve been told that we have to wait for the deed to be changed and approved before we can complete. So I’d simply like to know if we do actually need to wait for the deed to be changed? Does the single dwelling covenant removal affect us from continuing with the purchase? Or should we be ok to exchange and complete whilst the rest can be updated after we complete? Thanks
Thank you for your comment.
We really can’t provide even general advice that might be relevant without knowing a lot more and
considering all of the documentation involved.
In short, you can exchange and complete on a purchase whenever the parties want. This is a contractual
matter between the parties. However, there might be a problem with the title to the property which
prevents you from being registered as the legal proprietors, or a right for a third party that would be
binding on you if it is not dealt with first. The job of a buyer’s solicitor is to provide their client with
enough information and explanation that their client can make an informed decision about what to do.
We don’t really understand how a TR1 could be used to transfer part of a title (i.e. a parcel of land) to a
buyer. When a title is being “split” a TP1 is normally the correct Land Registry form to use.
If you haven’t exchanged contracts, then it is extremely unlikely that you would have any contractual
right to force the seller to get on with things. Unless a contract exists in some form, which it probably
doesn’t, neither a buyer or seller would have any contractual rights against the other.
You do sound unsure of the position. If your solicitor is not explaining things to you clearly, enabling you
to make informed decisions, then might be doing something wrong. The job of a solicitor is to explain
things to their client in clear terms. You should definitely ask your solicitor for input and if you are still
unclear, ask for someone more senior to explain.
Hello! We bought a property in June 2023 and the property has land at the front of it with a footpath that runs diagonally across it. The wording in the covenant says we are granted “ (a) the right to pass and re-pass with or without vehicles over and along the road and on foot only over and along the footpaths shown coloured Brown on the said plan——- “
I have the original plan, and the area that is marked in brown is clearly showing a footpath at the very front of the property but there is no footpath present it is grass and has always been grass, the footpath only runs diagonally and not straight across. We ideally would like to be able to utilise this piece of our land for off road parking, we have tried to locate the original developers of the property but they are no longer trading that we can find, the property was built in 1976 and the family we bought it from were the first owners and kept all the original documentation. Our question is – can we legally apply for planning for parking here? And if not – how hard would it be to amend this covenant to allow us to vary the title for this? (If that’s the correct terminology) our neighbours would also like to do the same from informal conversations and there are 7 of us in total. Can you provide some information if the “juice is worth the squeeze” there are utilities located at various points across the front of the property also. (Water, drainage, gas and electric)
Thank you for your comment.
What a fantastic phrase, if the “juice is worth the squeeze”. It epitomises so much in law. Often there is
not a clear, black and white answer (if there was, there would be no need for courts or lawyers – and
some might say that world a better place for it) and it is often a question of risk/cost vs benefit.
We cannot provide specific advice on our website but certainly, one of the things to always consider is
the extent to which a beneficiary of any restrictive covenant or easement, such as a right of way, is
prepared or able to enforce it. It is a rare case where a court might hold that a right over land has been
abandoned, and the basic position is that such a right will not come to an end from the effluxion of time
or from simply not being used regularly.
We think you are talking about a right of way, but it isn’t clear who the beneficiary of that right is. If the
property is part of a larger development, the right of way may not necessarily have been for the benefit
of just the developer but for others. Claiming that a right of way has been abandoned is very difficult.
Normally express evidence of the intention to abandon it is required.
I am considering a land purchase, woodland on the outskirts of a city. The title deed has a Covenant in place from the late 1800’s.
There are no further details available on the covenant on the land registry.
I am committed to maintaining the quality and the natural landscape of the area. I have no plans to develop the site for housing.
Is there a way to find the details of the Covenant where the land registry hold no further information?
Thank you for your comment.
There should be some evidence as to the land which benefits from the restrictive covenant (the
“dominant land”) or it would not be noted on the title.
We presume the that what you are suggesting is that a copy of the deed that creates the restrictive
covenant is missing. Without considering the title to the land itself, it is hard to know what to do. We
suspect that one step could be to check neighbouring titles, to see what might be noted on those titles.
Hi, we are in the last stages of completing our purchase of our new home. We have received searches yesterday in regards to the land registry. There are restricted covenants set out as displayed down below :
1. The A: Property Register identifies the Property.
You will note that reference is made to two Conveyance Deeds and the Plan shows the land was formerly 2 parcels of land
Over time the land has been sold and has become one parcel of land that the property is built upon today.
The vendor set out provisions that required each purchaser to comply with; point A2 states that purchasers are not granted any right of light or air over the Vendors adjoining property if it interferes with the use of the Vendors adjoining land.
A3 states the same but also states that the purchasers are not entitled to any right of way over the adjoining land or a right of access to the Vendors adjoining land.
Is there any way we could have this erased? The restriction has been set from 1936
We are so devastated as we were looking to have a summer house built at the back of the garden once planning permission is given
I really do need some help and guidance
Thank you for your comment.
As you have solicitors retained, this is probably a question for them before you commit to the purchase.
We also can’t give legal advice on our website, just a bit of general guidance.
In short, restrictive covenants can be declared obsolete sometimes, but the age of the restriction is not
really that relevant to matters. It is also possible to apply to have them varied. There might also be
scope to obtain insurance (although possibly not) to protect against the risk of future enforcement.
There are a number of considerations to take account of before deciding on what to do, not least
whether or not the restrictions can be enforced. On this point, we note that the land in question
appears to have been two parcels but these are now in common ownership (possibly, we are not
certain). If there is unity of ownership, also referred to as “unity of seisin”, a restrictive covenant might
be extinguished. This might be something you can get some advice on within your existing retainer with
your solicitor; a good property lawyer should know about these things.
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.
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.
In the UK I bought a house with Covenant. The Covenant say there’s a management company for maintaining particular assets. Those particular assets are maintained by the company in which the residents should be handed the shares to. This hasn’t happened, therefore is the Covenant actually enforceable?
Thank you for your comment.
What it sounds like is that you purchased a leasehold property with a tripartite lease. This is a common arrangement whereby the flat owner owns and is responsible for their own flat but the landlord, who owns the other parts of the building (such as communal areas and the like) has passed on responsibility for looking after these areas to a management company. That management company is owned and operated by the tenants themselves (by virtue of their being shareholders, and probably directors) giving them more control over how the building as a whole is maintained.
If your question is does a flat owner have to be a registered as a shareholder to be able to enforce the obligations on the management company to carry out its functions, the answer is probably not. The lease itself should grant the flat owner the necessary rights to oblige the management company to take carry out its functions, if it is failing to do so.
Some caution should be exercised in this respect. Most management companies owned and operated by the leaseholders will collect service charges in order to maintain the building. Those service charges are likely to be held on statutory trust. This is to protect them from creditors and to make sure that they are applied for the purposes for which they were collected. If you are contemplating a claim against a management company, you should seek legal advice on your ability to recover any expense that you incur, as the management company may not have any assets of its own to discharge that financial liability, only service charges that it has collected which might not be available to creditors.
Hi, I am thinking of buying some land with historical overage clause imposed in the late 1980’s and is by way of a restrictive covenant.
It states no residential or commercial buildings can be erected on the land without consent but if planning is obtained for residential or commercial buildings and that planning obtains the maximum increase in the value of the land, the covenant will be released on payment of 50% of the increase in value.
What does it mean I need to pay if I apply and am successful in getting planning for a house ? Is such a restrictive covenant still valid after more than 30 years ?
Thank you for your comment.
We cannot give specific advice on our website. We need to look at documents and consider the position as a whole in any event.
What we can say is that you should exercise caution and speak with a solicitor.
An overage agreement will not automatically end and neither will a restrictive covenant after a period of time. There are complex legal points to consider regarding what are called “perpetuities” and some academic debate regarding such matters. Broadly, the law looks to prevent someone from exercising control over private land for an excessive period of time (e.g. after their death), however it is a very complex subject area.
However, on the assumption that the overage agreement is valid and enforceable, it will bind a purchaser and a purchaser would have to abide by its terms.
Hi My property has a covenant to pay fees for a management company, this company runs a members club, it is not in a good financial situation, fees are getting out of control. Is there anything i can do to remove or take this matter further with the company? It says the covenant runs for 80 years, is there anything i can do, how do hold this company accountable?
Except under an Order of the registrar no transfer or lease by the proprietor of the land in this title or assent by his personal representative is to be registered unless a Certificate signed by the Secretary of—- ,has been furnished that such transfer lease or assent does not contravene any of the provisions of the Transfer dated 29 April 1987 referred to in the Charges Register.
Thank you for your comment.
We are not certain of the context in which the management company is paid, but we assume that it is a leasehold management company and that the “member’s club” that you refer to is a committee of other leaseholders or directors of the management company.
Yes, if you believe that funds you are obliged to pay under your lease to discharge the management company’s functions are excessive or being misapplied, you can take action. Such fees will generally have to be “reasonable”.
Ultimately, if you cannot resolve the matter informally with the management company, you can apply to the First Tier Tribunal (Property Chamber) under Section 27A of the Landlord and Tenant Act 1985 for a determination of the reasonableness of any charges being rendered.
It is very difficult to unpick, the members club is a propraitry club, my deed says I have to pay the fees, there is an deed of trust and we have shares in the Ltd company, all residents seem to have no to help or complain to as they are ruining at a massive loss! Could your firm help?
Thank you for your further comment.
We are not sure what more we could add to our previous comment. Realistically we would need to
consider the deeds in some detail before we could form a view.
Would you be able to help in this matter?
Thank you for your further comment.
Yes we could potentially assist with matters, subject to the availablilty of someone to take the matter on
for you. However, this is not to say that we would be able to give you the advice you wanted to hear.
These matters are often complicated and we would need to consider the position with you in some
detail to enable you to make an informed decision.
You would be better off telephoning us on 01376 326868 if you wanted to instruct us, rather than corresponding on our
website (we aren’t always that quick to reply to comments here). We are a very approachable bunch
and happy to have a quick chat to see where we might be able to help.
We are currently in the process of purchasing a property. The deeds we have date back to 1960 and contain outdated terms and conditions.
The house was last purchased by the seller in 2011. Should there be a deed from 2011 with updated covenants.
Additionally, there is a restriction stating that no vehicles are allowed on the property?
My solicitor has advised that we will need to apply for a permit after completing our registration documents to show ownership of the property.
Is it correct? If so,
1. Who is eligible to apply for a permit for the driveway? Is it exclusively the owner, or can any neighbour apply?
2. Is the permit periodic or perpetual? If periodic, how often must one apply for it?
3. What is the usual cost associated with obtaining this type of permit?
4. Is there a possibility that the permit might be denied?
Thank you for your comment.
Without understanding the restrictive covenant itself, the title deeds and what the permit is required for or who grants it, we would not be able to say.
What we can provide on our website is general guidance and in respect of what you have written, we can say that once a restrictive covenant is correctly registered or otherwise applies to land, it does not generally come to an end on a subsequent sale and does not need to be “renewed” or “updated” per se.
There may also be other considerations to take account of, such as whether or not prescriptive rights have been acquired, the restriction itself is obsolete and the nature of what you are actually purchasing (e.g. freehold, leasehold and whose land we are talking about.)
We own outright a freehold property built on Duchy of Cornwall land. All properties were built with wood window frames and doors. Many residents would now like to replace rotting wood products with suitably designed (acceptable in many Conservation Areas) upvc products. The current restrictive covenant bans the fitting of upvc. We have been in discussion with the Duchy, and they refuse to relax the restriction, citing the embodied carbon as being damaging to the environment. We have offered to offset the carbon, as the Duchy have been doing for years, again to no avail. Should we crowdfund a legal challenge with the Lands Tribunal?
Thank you for your comment.
It sounds like a frustrating situation for you but something that would be of interest to a lawyer.
Restrictive covenants can become obsolete over time due to changes in the nature and character of an area, for example.
We cannot advise you what to do on our our website, even if there was an immediate answer that we could provide. We can only provide general guidance which should not be a considered a substitution for proper legal advice.
However, it strikes us that fundamentally, what amenity value is being protected as against the changing attitudes of people to move towards more sustainable accommodation, if not the “need” to do this for the benefit of all. With any restrictive covenant, a consideration of what it was intended to protect against at the time it was granted is first and foremost what is necessary. If it can be said that the need for that protection has fallen away (who would buy a property with no double glazing?) there may be scope to mount a challenge.
We are in the final stages of buying a house. However we received our final searches yesterday and we noticed the following:
‘The Local Authority Search refers to an enforcement notice that has been issued for the property. Please see additional details below:
This relates to the use of the garage as storage. The enforcement notice is historical in nature and dates from 19 October 1973.
Due to the historical nature together with confirmation that the notice was complied with, we confirm that we have no concerns about this.
We understand that the integral garage at the property continues to be a garage. The above-mentioned Planning Permission enforcement notice suggests that within the planning consent for the property that there is a planning permission condition requiring the garage to remain as such. Please be aware of this.’
We would like to convert the garage and everyone else in the row already has, is this going to be an issue or is this something that we could apply for and get changed easily as it is an old condition?
Thank you for your comment.
We are sorry but we cannot provide specific advice on our website. We can only provide general guidance and this should not be considered a substitution for full legal advice.
If you have concerns about specific points regarding your proposed purchase, you really should not be shy about asking your conveyancing solicitor. This is what they are there for.
Whether or not your solicitor is able to help you is another point you will need to discuss with them. It sounds as though your query is whether or not a planning application to convert the garage would be successful. This is not something a conveyancing solicitor would ordinarily be able to advise upon, but you should definitely ask, just in case.