166 thoughts on “Restrictive covenants on property”
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
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?
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?
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?
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.
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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.