166 thoughts on “Restrictive covenants on property”
Hello, We bought a property where the deeds were lost. Due to this the conveyancer could not tell us about a restrictive covenant which later our neighbour told us. We want to do loft extension but the covenant in our neighbours deed which we thinks applies to us mentions that the owner of estate (he and his ancestors are dead) set up and additional layer of surveyor.
My question is how can we proceed with this? We applied for planning permission as suggested by our covayencer and it was approved but our neighbours are planning something to stop construction. How can we avoid this?
The first point that arises out of your comment is the extent to which your conveyancing solicitor should have identified the missing deeds and suggested a suitable insurance policy for you. Missing deeds insurance is sometimes available depending on the circumstances and you should check to see whether or not this was obtained on your behalf.
Whether or not the same restrictive covenant for your neighbour applies to you would of course be contingent on establishing whether or not there were any deeds to this effect. It may be the case that, with some investigation, such deeds could be identified, but on the assumption that such a restriction does apply, whether or not it is enforceable will depend on the circumstances of the matter.
A restrictive covenant is always granted to protect against a specific thing. Due to changes in the character of the property or neighbourhood, restrictive covenants can become obsolete. This is a point worth checking.
We are surprised that your conveyancing solicitor advised you to apply for planning permission as normally the scope of their retainer would be limited to advising you on the legal aspects of your purchase as opposed to recommending anything in particular.
If you would like us to look into the matter in more detail for you, please do feel free to get in touch.
We are purchasing a house with a large garden area, a small part of this is private garden we can erect fences etc. The larger chunk do own has a covenant stating access is granted to 14 other houses and we are not to erect fences or sheds in the large area.
Each one of the 14 houses has the same, one small prviate area and the huge area is all split up and owned by each house but each has a convenant with access rights for all the other houses.
I would like to fence our whole garden area and remove this covenant. Do i stand a chance?
Whether or not a restrictive covenant is enforceable, or has become obsolete and capable of being removed from the title to any property, is very fact specific. If the purpose of the restriction is to ensure that access to common parts shared by numerous people is maintained at all times, and a fence would stop this, then it may be a stretch to say that a fence would not interfere with this right and be in breach of any restriction.
We would need to consider all of the relevant documents and take some instructions before we could give any specific advice. We can’t give legal advice on our website, just an overview of the legal principles that may apply.
Hi – We are interested in purchasing a new build property local to us on a small development. The property is classed as an affordable home with discounted price to allow local people who may not otherwise be able to afford to buy, the chance to own their own property. We are interested as my partner has lived in the area all his life and we live in rented. However I notice on the Developers application form it specifies that one of the criteria is that the property will not be permitted to be let out as a rental property once purchased. Although we plan to live in the house I am concerned that should our personal situation change ie: we have to move away for work on a temporary contract and need to rent our property whilst doing so, is this ban on the future owner renting the property legally enforceable or can it be challenged? Also if we did purchase it and then one day sell it, would that ban on letting the property continue or affect the resale, making it harder to sell?
It isn’t clear from what you write precisely whether or not the condition you refer to already exists, or is going to be imposed once the property is sold. On the basis that this is a new development, and it appears that the developer has mentioned it in the application form, we will assume that it is a restriction that will be imposed on completion and registered at the Land Registry accordingly.
It is not unusual for developers to impose restrictions on the future use of a property. There could be any number of reasons for this. However, there is not a “list” of what is or is not a reasonable and therefore enforceable restriction. Any restrictive covenant must be considered in context and this is going to be fact specific and depends on what it is intended to protect. Likewise, even if the restriction is not enforceable for any reason, it does not stop the covenantor from taking steps to enforce it, through the courts or otherwise, depending on the circumstances.
Whilst we cannot give specific advice on our website, even if we had checked the documentation in more detail, the chances are that our advice would be to treat the restriction as enforceable when deciding whether to proceed or not. It is a very rare situation where conclusive advice can be given as to whether or not a restrictive covenant is enforceable; normally there are numerous arguments both ways because the matter is always very fact specific.
Unless you are content to risk being drawn into a dispute in the future, irrespective of what arguments exist as to the enforceability of any restriction, it would probably be best to try and negotiate with the seller/developer and if that did not work, think carefully about proceeding.
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Hello,
We bought a property where the deeds were lost. Due to this the conveyancer could not tell us about a restrictive covenant which later our neighbour told us.
We want to do loft extension but the covenant in our neighbours deed which we thinks applies to us mentions that the owner of estate (he and his ancestors are dead) set up and additional layer of surveyor.
My question is how can we proceed with this? We applied for planning permission as suggested by our covayencer and it was approved but our neighbours are planning something to stop construction. How can we avoid this?
Thank you for your comment.
The first point that arises out of your comment is the extent to which your conveyancing solicitor should have identified the missing deeds and suggested a suitable insurance policy for you. Missing deeds insurance is sometimes available depending on the circumstances and you should check to see whether or not this was obtained on your behalf.
Whether or not the same restrictive covenant for your neighbour applies to you would of course be contingent on establishing whether or not there were any deeds to this effect. It may be the case that, with some investigation, such deeds could be identified, but on the assumption that such a restriction does apply, whether or not it is enforceable will depend on the circumstances of the matter.
A restrictive covenant is always granted to protect against a specific thing. Due to changes in the character of the property or neighbourhood, restrictive covenants can become obsolete. This is a point worth checking.
We are surprised that your conveyancing solicitor advised you to apply for planning permission as normally the scope of their retainer would be limited to advising you on the legal aspects of your purchase as opposed to recommending anything in particular.
If you would like us to look into the matter in more detail for you, please do feel free to get in touch.
Hi,
We are purchasing a house with a large garden area, a small part of this is private garden we can erect fences etc. The larger chunk do own has a covenant stating access is granted to 14 other houses and we are not to erect fences or sheds in the large area.
Each one of the 14 houses has the same, one small prviate area and the huge area is all split up and owned by each house but each has a convenant with access rights for all the other houses.
I would like to fence our whole garden area and remove this covenant. Do i stand a chance?
Thank you for your comment.
Whether or not a restrictive covenant is enforceable, or has become obsolete and capable of being removed from the title to any property, is very fact specific. If the purpose of the restriction is to ensure that access to common parts shared by numerous people is maintained at all times, and a fence would stop this, then it may be a stretch to say that a fence would not interfere with this right and be in breach of any restriction.
We would need to consider all of the relevant documents and take some instructions before we could give any specific advice. We can’t give legal advice on our website, just an overview of the legal principles that may apply.
Hi – We are interested in purchasing a new build property local to us on a small development. The property is classed as an affordable home with discounted price to allow local people who may not otherwise be able to afford to buy, the chance to own their own property.
We are interested as my partner has lived in the area all his life and we live in rented. However I notice on the Developers application form it specifies that one of the criteria is that the property will not be permitted to be let out as a rental property once purchased. Although we plan to live in the house I am concerned that should our personal situation change ie: we have to move away for work on a temporary contract and need to rent our property whilst doing so, is this ban on the future owner renting the property legally enforceable or can it be challenged?
Also if we did purchase it and then one day sell it, would that ban on letting the property continue or affect the resale, making it harder to sell?
Thank you for your comment.
It isn’t clear from what you write precisely whether or not the condition you refer to already exists, or is going to be imposed once the property is sold. On the basis that this is a new development, and it appears that the developer has mentioned it in the application form, we will assume that it is a restriction that will be imposed on completion and registered at the Land Registry accordingly.
It is not unusual for developers to impose restrictions on the future use of a property. There could be any number of reasons for this. However, there is not a “list” of what is or is not a reasonable and therefore enforceable restriction. Any restrictive covenant must be considered in context and this is going to be fact specific and depends on what it is intended to protect. Likewise, even if the restriction is not enforceable for any reason, it does not stop the covenantor from taking steps to enforce it, through the courts or otherwise, depending on the circumstances.
Whilst we cannot give specific advice on our website, even if we had checked the documentation in more detail, the chances are that our advice would be to treat the restriction as enforceable when deciding whether to proceed or not. It is a very rare situation where conclusive advice can be given as to whether or not a restrictive covenant is enforceable; normally there are numerous arguments both ways because the matter is always very fact specific.
Unless you are content to risk being drawn into a dispute in the future, irrespective of what arguments exist as to the enforceability of any restriction, it would probably be best to try and negotiate with the seller/developer and if that did not work, think carefully about proceeding.