166 thoughts on “Restrictive covenants on property”
I have lived in (and owned, together with my late wife) my house for over 43 years. When we bought it in 1980 it already had a two-floor side extension which, 12 years ago, we had enlarged. When my wife passed away 8 months ago and I registered the change of ownership with Land Registry I became aware that there is a Restrictive Covenant. One of the things it restricts is adding extensions. I have tried searching extensively to discover who is the Covenantee but the house was built in 1933 and I cannot find any trace. Ideally I’d like to have to covenant lifted/removed but, bearing in mind it’s already been breached and, I can’t find the Covenantee, what would be my best course of action?
Thank you for your comment and we are sorry to hear of your loss.
Whether or not you want to mount a challenge to the restrictive covenant would ultimately be a decision for you, but it might not be necessary, if it is genuinely the case that the owner of the land that benefits from the restriction cannot be found. Sometimes, insurance can be obtained to cover the risk of enforcement and the cost of that is not often that much. This often happens during a conveyancing transaction, when the buyer identifies the issue and the seller agrees to buy an insurance policy to cover the risk, passing the same to the seller on completion of the sale. There are also other things to consider regarding whether or not the restrictive covenant is enforceable and by whom.
In reality, it comes down to assessing risk and cost, and making a decision about what to do based on that.
[A housing company] has just completed the redevelopment of a large inner-city estate in Westhampton. it is [their] intention to ensure that the entire estate should be for residential occupation only and it proposes to impose restrictive covenants on all purchasers to ensure this. It does not wish to retain any interests in the property. It also wishes to impose an obligation on all purchasers to keep the properties in good repair, to preserve the character of the neighbourhood. We require advise [the developers] of the various methods by which this can be achieved, if at all.
We are not certain of what it is you are asking, and we cannot provide legal advice on our website. At best we can really only highlight general principles that might be relevant. What we put on our website should not be considered a substitute for full legal advice.
It is not unusual for developers to impose restrictive covenants, normally aimed at preserving the character and nature of the development, whilst they sell off their properties. This ensures that the properties retain maximum value. The extent to which others on the development can also rely on such restrictive covenants would depend on the wording of the restriction. It would not necessarily be unreasonable for, for example, a neighbour not to want next door to be knocked down and replaced with a monstrous building that interferes in some way with their enjoyment of their property or otherwise might have an impact on its value.
Normally, a developer owns a large site (perhaps contained within a single Land Registry title – which is a “parcel” of land) and sells off smaller parts of it to individual buyers. It would be normal to include in the transfer (ordinarily a “TP1” form) a restriction to be included in the title to the property. This is the “normal” method of creating a restrictive covenant.
Hi. The deeds to my property state “Not to build, dismantle, repair or keep or permit to be built dismantled repaired or kept upon the land hereby conveyed any engine motor vehicle caravan ocean or river craft or anything of a like nature or anything nor normally found upon residential premises”
I understand this as I can’t park my car or caravan on my drive, what are my chances of getting this removed?
All matters relating to restrictive covenants are very fact-specific. This is because most of the time, the restrictive covenant is in place to protect a particular feature of or amenity value of something in the locality.
In terms of having any restrictive covenant “removed” (it is never removed, just effectively declared defunct by the Land Registry on the direction of the Upper Tribunal (Lands Chamber)), it depends on the extent to which it is still required. Places change over time, for example, we have seen situations where the installation of solar panels has been objected to but because of the change in attitude towards this, and the fact that there were numerous other houses nearby with solar panels, it is not realistic to suggest that the restrictive covenant for that particular property was required any longer.
Sometimes restrictive covenants have an ulterior motive, to generate income for the covenantee (the person with the benefit of the covenant), and do not really protect the amenity value of the land it suggests it exists to benefit. A good example of this was a developer that benefitted from a restrictive covenant on an estate, which obliged the property owner to pay a surveyor to check any alterations to their property. It was probably not coincidental the limited companies that the surveyor and the developer operated through were owned by the same individuals. As the developer no longer owned any properties on the estate, these all having been sold off over time, it is had to see how land owned by the developer would benefit from the restriction, other than to generate an income.
These are the sort of matters which are often conducive to requests and then claims for the “removal” of the restrictive covenant. Most of the time, however, it is better to seek to vary a restriction, so it still exists but is not prohibitive for the purposes for which you wish to use the land. For example, it seems odd to have a driveway if it was not intended for a vehicle to be parked on it. Whilst we simply cannot offer legal advice on our website, so please do not take our comments as a substitution for fully considered advice, the key in your matter may be arguments surrounding the qualification “no[t] normally found upon residential premises”. It would probably be unusual to keep a bulldozer on a residential driveway, but a private car for use within that household would be fairly common. A commercial vehicle would not arguably be found on a residential driveway but what if the owner was a tradesperson, and this was their both their private and work vehicle? As for caravans, this is also arguable and requires a careful consideration of what the restriction intends to protect against? Is it to ensure that the roads around the area are kept free of cars, and if a caravan is on the driveway, it means a car on the street? Is it to ensure that people do not take up occupation in the caravan on the driveway? These are the sorts of arguments that can and do arise, and as mentioned, such cases are very fact specific; there is rarely a “hidden” meaning within the words used in a restrictive covenant.
This always takes a careful consideration of a number of factors, the most important one being understanding when and why the restrictive covenant was created in the first place and whether or not it serves the same purpose now.
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I have lived in (and owned, together with my late wife) my house for over 43 years. When we bought it in 1980 it already had a two-floor side extension which, 12 years ago, we had enlarged. When my wife passed away 8 months ago and I registered the change of ownership with Land Registry I became aware that there is a Restrictive Covenant. One of the things it restricts is adding extensions. I have tried searching extensively to discover who is the Covenantee but the house was built in 1933 and I cannot find any trace. Ideally I’d like to have to covenant lifted/removed but, bearing in mind it’s already been breached and, I can’t find the Covenantee, what would be my best course of action?
Thank you for your comment and we are sorry to hear of your loss.
Whether or not you want to mount a challenge to the restrictive covenant would ultimately be a decision for you, but it might not be necessary, if it is genuinely the case that the owner of the land that benefits from the restriction cannot be found. Sometimes, insurance can be obtained to cover the risk of enforcement and the cost of that is not often that much. This often happens during a conveyancing transaction, when the buyer identifies the issue and the seller agrees to buy an insurance policy to cover the risk, passing the same to the seller on completion of the sale. There are also other things to consider regarding whether or not the restrictive covenant is enforceable and by whom.
In reality, it comes down to assessing risk and cost, and making a decision about what to do based on that.
[A housing company] has just completed the redevelopment of a large inner-city estate in Westhampton. it is [their] intention to ensure that the entire estate should be for residential occupation only and it proposes to impose restrictive covenants on all purchasers to ensure this. It does not wish to retain any interests in the property. It also wishes to impose an obligation on all purchasers to keep the properties in good repair, to preserve the character of the neighbourhood. We require advise [the developers] of the various methods by which this can be achieved, if at all.
Thank you for your comment.
We are not certain of what it is you are asking, and we cannot provide legal advice on our website. At best we can really only highlight general principles that might be relevant. What we put on our website should not be considered a substitute for full legal advice.
It is not unusual for developers to impose restrictive covenants, normally aimed at preserving the character and nature of the development, whilst they sell off their properties. This ensures that the properties retain maximum value. The extent to which others on the development can also rely on such restrictive covenants would depend on the wording of the restriction. It would not necessarily be unreasonable for, for example, a neighbour not to want next door to be knocked down and replaced with a monstrous building that interferes in some way with their enjoyment of their property or otherwise might have an impact on its value.
Normally, a developer owns a large site (perhaps contained within a single Land Registry title – which is a “parcel” of land) and sells off smaller parts of it to individual buyers. It would be normal to include in the transfer (ordinarily a “TP1” form) a restriction to be included in the title to the property. This is the “normal” method of creating a restrictive covenant.
Hi. The deeds to my property state “Not to build, dismantle, repair or keep or permit to be built dismantled repaired or kept upon the land hereby conveyed any engine motor vehicle caravan ocean or river craft or anything of a like nature or anything nor normally found upon residential premises”
I understand this as I can’t park my car or caravan on my drive, what are my chances of getting this removed?
All matters relating to restrictive covenants are very fact-specific. This is because most of the time, the restrictive covenant is in place to protect a particular feature of or amenity value of something in the locality.
In terms of having any restrictive covenant “removed” (it is never removed, just effectively declared defunct by the Land Registry on the direction of the Upper Tribunal (Lands Chamber)), it depends on the extent to which it is still required. Places change over time, for example, we have seen situations where the installation of solar panels has been objected to but because of the change in attitude towards this, and the fact that there were numerous other houses nearby with solar panels, it is not realistic to suggest that the restrictive covenant for that particular property was required any longer.
Sometimes restrictive covenants have an ulterior motive, to generate income for the covenantee (the person with the benefit of the covenant), and do not really protect the amenity value of the land it suggests it exists to benefit. A good example of this was a developer that benefitted from a restrictive covenant on an estate, which obliged the property owner to pay a surveyor to check any alterations to their property. It was probably not coincidental the limited companies that the surveyor and the developer operated through were owned by the same individuals. As the developer no longer owned any properties on the estate, these all having been sold off over time, it is had to see how land owned by the developer would benefit from the restriction, other than to generate an income.
These are the sort of matters which are often conducive to requests and then claims for the “removal” of the restrictive covenant. Most of the time, however, it is better to seek to vary a restriction, so it still exists but is not prohibitive for the purposes for which you wish to use the land. For example, it seems odd to have a driveway if it was not intended for a vehicle to be parked on it. Whilst we simply cannot offer legal advice on our website, so please do not take our comments as a substitution for fully considered advice, the key in your matter may be arguments surrounding the qualification “no[t] normally found upon residential premises”. It would probably be unusual to keep a bulldozer on a residential driveway, but a private car for use within that household would be fairly common. A commercial vehicle would not arguably be found on a residential driveway but what if the owner was a tradesperson, and this was their both their private and work vehicle? As for caravans, this is also arguable and requires a careful consideration of what the restriction intends to protect against? Is it to ensure that the roads around the area are kept free of cars, and if a caravan is on the driveway, it means a car on the street? Is it to ensure that people do not take up occupation in the caravan on the driveway? These are the sorts of arguments that can and do arise, and as mentioned, such cases are very fact specific; there is rarely a “hidden” meaning within the words used in a restrictive covenant.
This always takes a careful consideration of a number of factors, the most important one being understanding when and why the restrictive covenant was created in the first place and whether or not it serves the same purpose now.