156 thoughts on “Restrictive covenants on property”
Hello, I recently purchased a property which has several restrictive covenants on it, with most being old and dated (relating to alcoholic beverage sales etc) but one in question being one I’m looking for clarity on.
When I bought the property the solicitors told me that they couldn’t find any information on the covenant owner and that it was highly unlikely they are still around and would enforce them, and that if I wished to do work to the property against the covenant I could apply for covenant indemnity insurance.
The one which is in question is below;
“that the grantee will not erect any other building or erection upon the said plot of land (except a conservatory greenhouse or garage not exceeding ten feet in height) without the previous consent in writing of the grantors nor without such consent alter the elevation structure or external appearance of the said dwelling house not alter or raise the height or position of any of the walls upon the said plot”
Does this covenant mean that I cannot knock an internal wall down to create a kitchen diner? As the way I’m interpreting (and i could be wrong) it says that only the external walls cannot be altered.
And is the covenant indemnity insurance easy to apply and get if I wanted to do an extension etc?
It sounds as though your solicitors spotted the issue and gave you good advice. We would have hoped that perhaps some consideration for asking the seller to pay for the insurance policy was given, as this is sometimes worth asking for, but the premiums tend to be comparatively cheap. Insurance is fairly common place for things like this, but there are certain criteria to take account of (which normally includes not making contact with the person with the benefit of the restrictive covenant – probably not a problem if you cannot locate them) and the cost and availability of insurance can vary depending on the circumstances.
As for your specific query, we are sorry but we cannot give legal advice on our website. When it comes to the interpretation of a restrictive covenant, it is quite important to consider the whole of the document in which it is contained and its full wording, as well as the circumstances in which the restrictive covenant came about, as fundamentally it is necessary to understand what it is there to protect. From the extract you have provided, it seems to prohibit the building of anything further on the land, save for the things mentioned. There does not seem to be any mention of changes to the interior. A restriction on changes to the interior of a property would be unusual, as the purpose of a restrictive covenant is to benefit land nearby. It is hard to see how any changes to the interior of a property would have any impact on land nearby. However, this is not legal advice, so please do not rely on it. It is just an observation without having had the benefit of considering the position as a whole.
Hi there, really appreciate all your previous comments /posts about property covenants etc. Can you give me any thoughts on my property ‘s restrictive covenant that says ‘Within three years of the date of this transfer, the transferee shall not make any alterations or additions to the exterior or external appearance of property or erect any wall fences ‘ ….it then goes on about the cost of application, surveyors etc. The question is, can I just wait 3 years and is that issue negated ? Many thanks
We cannot give legal advice on our website. Further, when it comes to the interpretation of a restrictive covenant, it is quite important to consider the whole of the document in which it is contained and its full wording, as well as the circumstances in which the restrictive covenant came about, as fundamentally it is necessary to understand what it is there to protect.
Whilst the wording you quote does seem to accord with what you think, and it looks like a restriction imposed by a developer whilst they sell off other properties on the estate, we would not like to suggest (expressly or by implication) on our website that you can build a massive, pink polka dotted extension and that as long as 3 years have passed, there is nothing anyone could do about it, only for you to be upset because we hadn’t told you about something that we could not have identified. We hope you can understand this. It is not lawyers being difficult and is genuinely the case that the more a lawyer understands about a particular issue, the more accurate and well considered their advice will be.
I bought a garden with a store/ garage on there with the intention of obtaining planning permission for a dog grooming parlour. This was granted by the council. 8 years later I wish to sell and I have found that there was a covenant on the land stating that all was for leisure use and can’t be sold as a commercial building. Can this be changed or will I be stuck with it, I had a buyer who has pulled out because of this. Any i formation would be gratefully received.
Fundamentally, a binding restrictive covenant will remain binding. It is when there are changes to the nature of what that restriction originally intended to protect against, bringing into question the continued need for it, that challenges can be made. These are always very fact specific considerations.
Did your buyer consider insurance? It is not uncommon for insurance to be obtained in relation to older restrictive covenants that have not been enforced. This might be an option for you to consider.
I recently asked a question on your site but, it disappeared or was removed without answer and I would appreciate your advice on the best course of action with regard to a Restrictive Covenant on my 1930s built property.
My wife (who was joint owner) of our semi detached house passed away several months ago and, having contacted the Land Registry to transfer the property into my sole name, I learned that there is a Restrictive Covenant which, among other things (such as selling alcohol and having a funfair on the land) prohibits the building of an extension to the existing house. When we bought the house in December 1980 there was already a two-story side extension extension erected by the previous owner and, at the time of purchase, no mention of the Covenant was mentioned.
I have tried to discover who the Beneficiary is but without success and the Land Registry does not have this information. I had hoped that the university which owns the farmland to the rear might have some idea as to the Beneficiary but, having contacted them, they too are unable to help. In the copy of deeds which I have, a company name is mentioned and a company of the same name is registered at Companies House but, this particular company was not incorporated until October 1998 and is therefore, seemingly, nothing to do with the Covenantee.
Bearing in mind that, it would seem, the Covenant has already been breached as an extension has already been added and, twelve years ago (with local authority approval) I increased the size of the extension, this complicates my situation.
Ideally I would like to apply for the Covenant to be removed/lifted and I appreciate that this may be complicated and I am aware of the various Tribunal fees.
As I am seemingly unable to trace the Beneficiary, I would welcome advice on my best course of action.
We don’t publish all comments on our website, and sometimes, we also have to amend them before we put them up (for example, we are not going to let someone put potentially defamatory comments about someone else on here). Also the people that contribute to the website are all lawyers, with existing workloads that they have to prioritise, so might not have time to add content to our website, as our existing clients will always come first. We are sorry about that but hope you understand.
We also cannot provide legal advice on our website. We can really only identify general points of law that might apply and until we have considered the matter as a whole, are merely speculating as to the position.
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.
Please can you help me understand what the below means:
full and free right and liberty without obtaining the consent of or making any compensation to the Purchaser or other the owner or owners occupier or occupiers for the time being of the said property hereby conveyed to deal in any manner whatsoever with any of the said adjoining or neighbouring property and to erect and maintain or suffer to be erected or maintained on such land any buildings whatsoever whether such buildings shall or shall not affect or diminish the light or air which may now or at any time or times herefter be enjoyed for or in respect of the said property hereby conveyed or any building for the time being thereon and
We cannot provide specific legal advice on our website. We would also not be comfortable to provide advice on this wording without considering the context and document as a whole.
However, very broadly and subject to the fact that we are not sure what the document is, its full wording or the circumstances of the matter, this does not sound like a restrictive covenant. It sounds like wording from a very old conveyance in relation to a larger piece of land, from which a smaller piece was sold. It seems to give the seller and future owners of that land the right to build what they want on the land that they retained.
Hi there I would appreciate some advice re a restrictive covenant relating to ours ( and we think our neighbours property ). Our house was built back in 1989 in the large garden of a cottage which retained a swathe of land between our plots. A restrictive covenant applied to our property re not building any more than 1 house etc. The properties are access by a shared drive entrance so the covenant also covered the ability to use the drive and the splitting of maintenance costs for the shared proportion between the two properties 50:50. The covenant though also contains a Rider ( we believe ) relating to the Retained Land i.e. the cottage. One of the clauses states : A right of way at all times and for all purposes connected with the reasonable use and enjoyment of the Retained Land as one private residence with or without vehicles over and along the driveway coloured brown on the plan subject to the payment of one half of the expense of repairing and maintaining the same. The current owner of the cottage now wants to squeeze a three bedroom house in between our plot and theirs. I have three questions : 1. The Land Registry shows the covenant recorded against our property but it doesn’t show anything on the Cottages record – should it and if yes, how do we get it shown ? 2. Planning is pending but if they get approval could the above clause prevent them from being able to build or does it just fall away due to there now being more than one private residence ? 3. Obviously, if they build, there will then be 3 properties sharing the driveway which means we will be paying a disproportionate amount of the costs for the maintenance – can we force them to change the covenant.
We cannot provide specific legal advice on our website. We can only identify general principles that might apply to your circumstances. We would need to consider the matter in much more detail before we could give legal advice.
In short, not all rights are always recorded on titles to properties. There can be a number of reasons for this, including simply a mistake by the Land Registry. We would have to consider the titles before we could start to understand why something is not registered.
Planning permission generally has no bearing on the legal position of matters. You can obtain planning permission over a piece of land even if you are not legally able to build on it. All planning permission really is, is confirmation that what is being proposed complies with planning regulations. It is not generally relevant to the legal rights between the parties.
Whether or not there is scope to ask someone to contribute to a cost of something will generally depend on bargaining position. For example, if there is, on the face of it, an ability for someone to prevent someone else from building, there is leverage to say that the person with the benefit of the right will waive their right to enforce it, providing certain stipulations are observed.
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.
On my recently bought property there are some restrictive convenants in the deed but the beneficiary is a company that was dissolved in 2015.
We recently received a letter from a law firm on behalf of a limited company claiming to represent these restrictive covenants (but without mentioning they had been transferred from the old limited company).
Should i have received notification (e.g. from the land registry) that the covenants’ beneficiary had changed for them to be enforceable?
Restrictive covenants attach to land, not to individuals or companies.
The owner of the dominant land (the land that benefits from the restrictive covenants), including a corporate owner, is the person or entity with the right to enforce the restrictive covenant. It would not be usual for anyone, including the Land Registry, to inform the owner of the servient land (the land subject to the restrictive covenant) that the dominant land had changed hands.
Hi Mark, these comments are very helpful thank you. If the limited company that is identified in the Title Deeds of the property is transferred, how would the owner of the freehold ever find out who then owned the benefit of the restrictive covenant?
A second question if you don’t mind, how much time has to pass on a potential breach of the covenant (change to front elevation) before no permission from the beneficiary is later required?
We are not certain of your query. The Land Registry will hold records relating to registered land, which will also show registered rights and burdens that the land has (but not unregistered rights or burdens). Companies House will hold records of the owners (shareholders) of a limited company.
Certainly time is a factor to consider when it comes to the enforcement of any rights generally, including restrictive covenants. The longer that is left, generally the easier it is to argue that the beneficiary of a particular right has abandoned it, or acquiesced to the situation which may be in breach of it. However, there is no specific time limit and no rule to say that the beneficiary of a restrictive covenant loses their right to enforce it after a particular point in time (unless this is in the wording itself). A restrictive covenant is, by its nature, indefinite, in that until it is released or otherwise varied or disposed of it will always bind the owners of the servient land. This makes sense to a large degree, as no one can predict the future. The law, in essence, looks to balance the competing interests of individuals fairly, and this is why there are mechanisms to challenge restrictive covenants which may no longer serve the purpose that they were intended for.
Fundamentally, a binding restrictive covenant will remain binding. It is when there are changes to the nature of what it originally intended to protect, bringing into question the continued need for it, that challenges can be made. These are always very fact-specific considerations.
Hello, I would appreciate your advice on the below please. I am the owner of land that seems to have a restrictive covenant and I would like to know what the term ‘benefit’ means as that is not made clear from the below? Will I still be bound by the following restrictions, bearing in mind only the original 2 vendors, a pair of brothers are mentioned and not their successors, or subsequent owners, or occupiers? Both the original vendors/brothers died over 20 years ago. First brother had 2 children, second brother had none and his estate passed to the first brother. One child (son) inherited my side of the road and sold all their land immediately and this has since been inherited and then recently sold on again. The other child (daughter) inherited the other side of a B road with a 60mph limit, not touching my land but neighbouring I guess. The son who sold on is still alive I believe and has children I think but has moved away. The daughter who kept the land on the other side of the road, died recently, and her 3 children have inherited and they plan to sell on after probate is granted as they don’t want to run a smallholding anymore. Also, to make matters more complicated, various sections of the original farm, which is now called a different name from that of 1975 have been sold on several times and some is now rented out too. (It would be impossible to track down all owners of pieces of the original farm). The land I have inherited is still unregistered but has a Dii Land Charge against it. I will need to register it, but want to understand the situation I am in and whether I should do anything first? The part of the deed that concern me most is the following:-
4. ‘The Purchasers to the intent that the benefit of this covenant may be annexed to those parts of the Vendors adjoining property known as ‘…….’ as are capable of being so benefitted and so that the burden hereof may run with and bind so far as may be the property hereby conveyed and every part thereof into whosoever hands the same may come hereby jointly and severally covenant with the Vendors…… a) not to erect on that part of the land herby conveyed shaded blue on the said plan any form of dwelling and b) not to use the property hereby conveyed or any building erected thereon for any trade or business. ‘.
The other clauses only the ‘Purchasers’ are mentioned for boundary maintenance and ‘no rights to easement or light, or air that would restrict the free user from building on adjoining or neighbouring land’.
I guess what I want to know is does the ‘benefit’ pass to the successors of the original Vendors and to anyone who now owns any part of the original farm, or can this be challenged due to the ambiguity of the wording? In addition the land opposite me slopes downwards and away and tall trees and hedging have grown up so the neighbouring land wouldn’t even see if I or a subsequent owner did erect a house, if planning was even granted as countryside and outside settlement boundary. Would the current owners/defendants be able to enforce the covenant should they choose to? I have not built anything, but am concerned that when I wish to sell the covenant may put many people off. Business covenant affects whole property and not building a dwelling affects 2/3 of the land, but it wouldn’t be practical to build on other 1/3 as that is where the house already is. Also nature of area has changed in almost 50 years, much more busy and at least 10 different businesses in my road now, no new dwellings yet, but application is going to go in for several next door to me by new owners. Finding a starting point to move forward with this would be so much appreciated. Don’t think successors would all agree to signing a K11 as ones on other side of the road have already been approached and sadly not as keen as I hoped. What options are open to me?
We cannot provide specific advice on our website but can set out some general points which might be relevant considerations. Such guidance is not, however, a substitute for proper legal advice considered in the context of any particular case.
The “benefit” or “beneficiary” of any right is the person who is entitled to enforce that right. The basic position with restrictive covenants is that they must “touch and concern the land”. Restrictive covenants will attach to land, not individuals. If only individuals have the benefit of a right, only they can enforce it, normally as a matter of contract law. The wording is important, and it must be clear that the restriction was intended to benefit the “successors in title” or subsequent owners of the land. The date that the restriction was created, and how and when the land has been transferred can also relevant to the enforceability of any restrictive covenant. You mention a Land Charge, this is a way of protecting a restrictive covenant in unregistered land and therefore, it may be enforceable if this is what has happened. We would have to consider all of the relevant title documentation to be sure. A change in the character and nature of the area can also make restrictive covenants obsolete; it depends on what precisely restriction was intended to protect against at the time it was created and the amenity it intended to preserve.
The charges register on our register of title says there is a conveyance dated 25/4/1896 between two named individuals that “contains restrictive covenants but neither the original deed nor a certified copy or examined abstract thereof was produced on first registration”. There are no other documents on the Land Registry website. What does this mean – is there any way of finding out what the restricted covenant is?
We would need to see the title documentation and deeds that you do have to understand the position better, but short of trying to locate the document in someone’s papers, checking with any mortgage lender to see if they have it (which they don’t tend to these days) or getting a solicitor that may have been involved in past transactions in relation to the land to rummage through their deeds, it might be that the document simply cannot be found.
It would be worth checking whether or not the restrictive covenant was ever registered as a land charge. If it wasn’t, there might be scope to have the entry removed by the Land Registry.
Otherwise, and considering the age of the restrictive covenant (illustrating the fact that they do not just “go away” because they are old), this is precisely the sort of situation which could normally be addressed with a suitable indemnity policy, which are often comparatively cheap to put in place to protect against enforcement.
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Hello, I recently purchased a property which has several restrictive covenants on it, with most being old and dated (relating to alcoholic beverage sales etc) but one in question being one I’m looking for clarity on.
When I bought the property the solicitors told me that they couldn’t find any information on the covenant owner and that it was highly unlikely they are still around and would enforce them, and that if I wished to do work to the property against the covenant I could apply for covenant indemnity insurance.
The one which is in question is below;
“that the grantee will not erect any other building or erection upon the said plot of land (except a conservatory greenhouse or garage not exceeding ten feet in height) without the previous consent in writing of the grantors nor without such consent alter the elevation structure or external appearance of the said dwelling house not alter or raise the height or position of any of the walls upon the said plot”
Does this covenant mean that I cannot knock an internal wall down to create a kitchen diner? As the way I’m interpreting (and i could be wrong) it says that only the external walls cannot be altered.
And is the covenant indemnity insurance easy to apply and get if I wanted to do an extension etc?
Thank you for your comment.
It sounds as though your solicitors spotted the issue and gave you good advice. We would have hoped that perhaps some consideration for asking the seller to pay for the insurance policy was given, as this is sometimes worth asking for, but the premiums tend to be comparatively cheap. Insurance is fairly common place for things like this, but there are certain criteria to take account of (which normally includes not making contact with the person with the benefit of the restrictive covenant – probably not a problem if you cannot locate them) and the cost and availability of insurance can vary depending on the circumstances.
As for your specific query, we are sorry but we cannot give legal advice on our website. When it comes to the interpretation of a restrictive covenant, it is quite important to consider the whole of the document in which it is contained and its full wording, as well as the circumstances in which the restrictive covenant came about, as fundamentally it is necessary to understand what it is there to protect. From the extract you have provided, it seems to prohibit the building of anything further on the land, save for the things mentioned. There does not seem to be any mention of changes to the interior. A restriction on changes to the interior of a property would be unusual, as the purpose of a restrictive covenant is to benefit land nearby. It is hard to see how any changes to the interior of a property would have any impact on land nearby. However, this is not legal advice, so please do not rely on it. It is just an observation without having had the benefit of considering the position as a whole.
Hi there, really appreciate all your previous comments /posts about property covenants etc.
Can you give me any thoughts on my property ‘s restrictive covenant that says
‘Within three years of the date of this transfer, the transferee shall not make any alterations or additions to the exterior or external appearance of property or erect any wall fences ‘ ….it then goes on about the cost of application, surveyors etc. The question is, can I just wait 3 years and is that issue negated ?
Many thanks
Thank you for your comment.
We cannot give legal advice on our website. Further, when it comes to the interpretation of a restrictive covenant, it is quite important to consider the whole of the document in which it is contained and its full wording, as well as the circumstances in which the restrictive covenant came about, as fundamentally it is necessary to understand what it is there to protect.
Whilst the wording you quote does seem to accord with what you think, and it looks like a restriction imposed by a developer whilst they sell off other properties on the estate, we would not like to suggest (expressly or by implication) on our website that you can build a massive, pink polka dotted extension and that as long as 3 years have passed, there is nothing anyone could do about it, only for you to be upset because we hadn’t told you about something that we could not have identified. We hope you can understand this. It is not lawyers being difficult and is genuinely the case that the more a lawyer understands about a particular issue, the more accurate and well considered their advice will be.
I bought a garden with a store/ garage on there with the intention of obtaining planning permission for a dog grooming parlour. This was granted by the council. 8 years later I wish to sell and I have found that there was a covenant on the land stating that all was for leisure use and can’t be sold as a commercial building. Can this be changed or will I be stuck with it, I had a buyer who has pulled out because of this. Any i formation would be gratefully received.
Thank you for your comment.
Fundamentally, a binding restrictive covenant will remain binding. It is when there are changes to the nature of what that restriction originally intended to protect against, bringing into question the continued need for it, that challenges can be made. These are always very fact specific considerations.
Did your buyer consider insurance? It is not uncommon for insurance to be obtained in relation to older restrictive covenants that have not been enforced. This might be an option for you to consider.
Hello,
I recently asked a question on your site but, it disappeared or was removed without answer and I would appreciate your advice on the best course of action with regard to a Restrictive Covenant on my 1930s built property.
My wife (who was joint owner) of our semi detached house passed away several months ago and, having contacted the Land Registry to transfer the property into my sole name, I learned that there is a Restrictive Covenant which, among other things (such as selling alcohol and having a funfair on the land) prohibits the building of an extension to the existing house. When we bought the house in December 1980 there was already a two-story side extension extension erected by the previous owner and, at the time of purchase, no mention of the Covenant was mentioned.
I have tried to discover who the Beneficiary is but without success and the Land Registry does not have this information. I had hoped that the university which owns the farmland to the rear might have some idea as to the Beneficiary but, having contacted them, they too are unable to help. In the copy of deeds which I have, a company name is mentioned and a company of the same name is registered at Companies House but, this particular company was not incorporated until October 1998 and is therefore, seemingly, nothing to do with the Covenantee.
Bearing in mind that, it would seem, the Covenant has already been breached as an extension has already been added and, twelve years ago (with local authority approval) I increased the size of the extension, this complicates my situation.
Ideally I would like to apply for the Covenant to be removed/lifted and I appreciate that this may be complicated and I am aware of the various Tribunal fees.
As I am seemingly unable to trace the Beneficiary, I would welcome advice on my best course of action.
Many thanks
Thank you for your comment.
We don’t publish all comments on our website, and sometimes, we also have to amend them before we put them up (for example, we are not going to let someone put potentially defamatory comments about someone else on here). Also the people that contribute to the website are all lawyers, with existing workloads that they have to prioritise, so might not have time to add content to our website, as our existing clients will always come first. We are sorry about that but hope you understand.
We also cannot provide legal advice on our website. We can really only identify general points of law that might apply and until we have considered the matter as a whole, are merely speculating as to the position.
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.
Please can you help me understand what the below means:
full and free right and liberty without obtaining the consent of or making any compensation to the Purchaser or other the owner or owners occupier or occupiers for the time being of the said property hereby conveyed to deal in any manner whatsoever with any of the said adjoining or neighbouring property and to erect and maintain or suffer to be erected or maintained on such land any buildings whatsoever whether such buildings shall or shall not affect or diminish the light or air which may now or at any time or times herefter be enjoyed for or in respect of the said property hereby conveyed or any building for the time being thereon and
Thank you for your comment.
We cannot provide specific legal advice on our website. We would also not be comfortable to provide advice on this wording without considering the context and document as a whole.
However, very broadly and subject to the fact that we are not sure what the document is, its full wording or the circumstances of the matter, this does not sound like a restrictive covenant. It sounds like wording from a very old conveyance in relation to a larger piece of land, from which a smaller piece was sold. It seems to give the seller and future owners of that land the right to build what they want on the land that they retained.
Hi there I would appreciate some advice re a restrictive covenant relating to ours ( and we think our neighbours property ). Our house was built back in 1989 in the large garden of a cottage which retained a swathe of land between our plots. A restrictive covenant applied to our property re not building any more than 1 house etc. The properties are access by a shared drive entrance so the covenant also covered the ability to use the drive and the splitting of maintenance costs for the shared proportion between the two properties 50:50. The covenant though also contains a Rider ( we believe ) relating to the Retained Land i.e. the cottage. One of the clauses states : A right of way at all times and for all purposes connected with the reasonable use and enjoyment of the Retained Land as one private residence with or without vehicles over and along the driveway coloured brown on the plan subject to the payment of one half of the expense of repairing and maintaining the same. The current owner of the cottage now wants to squeeze a three bedroom house in between our plot and theirs.
I have three questions :
1. The Land Registry shows the covenant recorded against our property but it doesn’t show anything on the Cottages record – should it and if yes, how do we get it shown ?
2. Planning is pending but if they get approval could the above clause prevent them from being able to build or does it just fall away due to there now being more than one private residence ?
3. Obviously, if they build, there will then be 3 properties sharing the driveway which means we will be paying a disproportionate amount of the costs for the maintenance – can we force them to change the covenant.
Thank you for your comment.
We cannot provide specific legal advice on our website. We can only identify general principles that might apply to your circumstances. We would need to consider the matter in much more detail before we could give legal advice.
In short, not all rights are always recorded on titles to properties. There can be a number of reasons for this, including simply a mistake by the Land Registry. We would have to consider the titles before we could start to understand why something is not registered.
Planning permission generally has no bearing on the legal position of matters. You can obtain planning permission over a piece of land even if you are not legally able to build on it. All planning permission really is, is confirmation that what is being proposed complies with planning regulations. It is not generally relevant to the legal rights between the parties.
Whether or not there is scope to ask someone to contribute to a cost of something will generally depend on bargaining position. For example, if there is, on the face of it, an ability for someone to prevent someone else from building, there is leverage to say that the person with the benefit of the right will waive their right to enforce it, providing certain stipulations are observed.
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.
Hi,
On my recently bought property there are some restrictive convenants in the deed but the beneficiary is a company that was dissolved in 2015.
We recently received a letter from a law firm on behalf of a limited company claiming to represent these restrictive covenants (but without mentioning they had been transferred from the old limited company).
Should i have received notification (e.g. from the land registry) that the covenants’ beneficiary had changed for them to be enforceable?
Kind Regards
Restrictive covenants attach to land, not to individuals or companies.
The owner of the dominant land (the land that benefits from the restrictive covenants), including a corporate owner, is the person or entity with the right to enforce the restrictive covenant. It would not be usual for anyone, including the Land Registry, to inform the owner of the servient land (the land subject to the restrictive covenant) that the dominant land had changed hands.
Hi Mark, these comments are very helpful thank you. If the limited company that is identified in the Title Deeds of the property is transferred, how would the owner of the freehold ever find out who then owned the benefit of the restrictive covenant?
A second question if you don’t mind, how much time has to pass on a potential breach of the covenant (change to front elevation) before no permission from the beneficiary is later required?
Thank you for your further comment.
We are not certain of your query. The Land Registry will hold records relating to registered land, which will also show registered rights and burdens that the land has (but not unregistered rights or burdens). Companies House will hold records of the owners (shareholders) of a limited company.
Certainly time is a factor to consider when it comes to the enforcement of any rights generally, including restrictive covenants. The longer that is left, generally the easier it is to argue that the beneficiary of a particular right has abandoned it, or acquiesced to the situation which may be in breach of it. However, there is no specific time limit and no rule to say that the beneficiary of a restrictive covenant loses their right to enforce it after a particular point in time (unless this is in the wording itself). A restrictive covenant is, by its nature, indefinite, in that until it is released or otherwise varied or disposed of it will always bind the owners of the servient land. This makes sense to a large degree, as no one can predict the future. The law, in essence, looks to balance the competing interests of individuals fairly, and this is why there are mechanisms to challenge restrictive covenants which may no longer serve the purpose that they were intended for.
Fundamentally, a binding restrictive covenant will remain binding. It is when there are changes to the nature of what it originally intended to protect, bringing into question the continued need for it, that challenges can be made. These are always very fact-specific considerations.
Hello, I would appreciate your advice on the below please. I am the owner of land that seems to have a restrictive covenant and I would like to know what the term ‘benefit’ means as that is not made clear from the below? Will I still be bound by the following restrictions, bearing in mind only the original 2 vendors, a pair of brothers are mentioned and not their successors, or subsequent owners, or occupiers? Both the original vendors/brothers died over 20 years ago. First brother had 2 children, second brother had none and his estate passed to the first brother. One child (son) inherited my side of the road and sold all their land immediately and this has since been inherited and then recently sold on again. The other child (daughter) inherited the other side of a B road with a 60mph limit, not touching my land but neighbouring I guess. The son who sold on is still alive I believe and has children I think but has moved away. The daughter who kept the land on the other side of the road, died recently, and her 3 children have inherited and they plan to sell on after probate is granted as they don’t want to run a smallholding anymore. Also, to make matters more complicated, various sections of the original farm, which is now called a different name from that of 1975 have been sold on several times and some is now rented out too. (It would be impossible to track down all owners of pieces of the original farm). The land I have inherited is still unregistered but has a Dii Land Charge against it. I will need to register it, but want to understand the situation I am in and whether I should do anything first? The part of the deed that concern me most is the following:-
4. ‘The Purchasers to the intent that the benefit of this covenant may be annexed to those parts of the Vendors adjoining property known as ‘…….’ as are capable of being so benefitted and so that the burden hereof may run with and bind so far as may be the property hereby conveyed and every part thereof into whosoever hands the same may come hereby jointly and severally covenant with the Vendors…… a) not to erect on that part of the land herby conveyed shaded blue on the said plan any form of dwelling and b) not to use the property hereby conveyed or any building erected thereon for any trade or business. ‘.
The other clauses only the ‘Purchasers’ are mentioned for boundary maintenance and ‘no rights to easement or light, or air that would restrict the free user from building on adjoining or neighbouring land’.
I guess what I want to know is does the ‘benefit’ pass to the successors of the original Vendors and to anyone who now owns any part of the original farm, or can this be challenged due to the ambiguity of the wording? In addition the land opposite me slopes downwards and away and tall trees and hedging have grown up so the neighbouring land wouldn’t even see if I or a subsequent owner did erect a house, if planning was even granted as countryside and outside settlement boundary. Would the current owners/defendants be able to enforce the covenant should they choose to? I have not built anything, but am concerned that when I wish to sell the covenant may put many people off. Business covenant affects whole property and not building a dwelling affects 2/3 of the land, but it wouldn’t be practical to build on other 1/3 as that is where the house already is. Also nature of area has changed in almost 50 years, much more busy and at least 10 different businesses in my road now, no new dwellings yet, but application is going to go in for several next door to me by new owners. Finding a starting point to move forward with this would be so much appreciated. Don’t think successors would all agree to signing a K11 as ones on other side of the road have already been approached and sadly not as keen as I hoped. What options are open to me?
Thank you for your comment.
We cannot provide specific advice on our website but can set out some general points which might be relevant considerations. Such guidance is not, however, a substitute for proper legal advice considered in the context of any particular case.
The “benefit” or “beneficiary” of any right is the person who is entitled to enforce that right. The basic position with restrictive covenants is that they must “touch and concern the land”. Restrictive covenants will attach to land, not individuals. If only individuals have the benefit of a right, only they can enforce it, normally as a matter of contract law. The wording is important, and it must be clear that the restriction was intended to benefit the “successors in title” or subsequent owners of the land. The date that the restriction was created, and how and when the land has been transferred can also relevant to the enforceability of any restrictive covenant. You mention a Land Charge, this is a way of protecting a restrictive covenant in unregistered land and therefore, it may be enforceable if this is what has happened. We would have to consider all of the relevant title documentation to be sure. A change in the character and nature of the area can also make restrictive covenants obsolete; it depends on what precisely restriction was intended to protect against at the time it was created and the amenity it intended to preserve.
The charges register on our register of title says there is a conveyance dated 25/4/1896 between two named individuals that “contains restrictive covenants but neither the original deed nor a certified copy or examined abstract thereof was produced on first registration”. There are no other documents on the Land Registry website. What does this mean – is there any way of finding out what the restricted covenant is?
Thank you for your comment.
We would need to see the title documentation and deeds that you do have to understand the position better, but short of trying to locate the document in someone’s papers, checking with any mortgage lender to see if they have it (which they don’t tend to these days) or getting a solicitor that may have been involved in past transactions in relation to the land to rummage through their deeds, it might be that the document simply cannot be found.
It would be worth checking whether or not the restrictive covenant was ever registered as a land charge. If it wasn’t, there might be scope to have the entry removed by the Land Registry.
Otherwise, and considering the age of the restrictive covenant (illustrating the fact that they do not just “go away” because they are old), this is precisely the sort of situation which could normally be addressed with a suitable indemnity policy, which are often comparatively cheap to put in place to protect against enforcement.