166 thoughts on “Restrictive covenants on property”
My daughter is looking to buy woodland in order to plant more native trees and run woodland crafts courses and yoga retreats (requiring yurts for accommodation). Every woodland she has looked at to date comes with a covenant prohibiting use for commercial purposes. Running woodland craft courses and yoga retreats seems a fair use to out the land, in part so it’s not just left to rewild but actually contributes to a local economy and community. Any thoughts on the dream?
Whilst it sounds like what your daughter has planned would be a blissful place to go (and something that most solicitors would probably benefit from), if there is ever any doubt as to a restriction on the property or land, it is a risk to proceed.
Restrictive covenants are not easily avoided. What it comes down to is the intention behind the restriction and what is trying to be protected against. Even on a narrow interpretation, charging someone that attends a retreat is arguably a commercial purpose. Whilst we cannot provide specific guidance on our website, and in particular would need to consider the wording of the restriction and plans involved, if there is scope for argument (and there usually is when it comes to restrictive covenants) it is normally advisable to approach the person with the benefit of the restrictive covenant and ask the question, before committing to a purchase.
We are buying a property (A) with restrictive covenants which is adjacent to another title deed (B) that is owned by the same Vendor. The original restrictive covenants prohibit the Vendor from erecting any buildings. The Vendor is now trying to sell the us the A as “sale of part” (retaining only tiny strip of land) claiming that they need access to the Service Media. There seems a number restrictive covenants in TP1 specifically related to us maintaining that Service Media as wells as full indemnity.
1. Could selling this as a ‘sale of part’ be a way for them to remove the existing covenants and include additional covenants to be able to build houses on the adjacent land B?
2. Do the existing covenants transfer to a Buyer with a ‘sale of part’ transaction?
We cannot provide specific advice on our website or indeed anything that could constitute legal advice that could be relied on. This is primarily because every situation will be different and a proper consideration of the matter would be required. Your comment epitomises this, as it raises a lot of potential points which would need to be considered in detail.
You should definitely raise these issues with your conveyancing solicitor. You should not proceed with a purchase if you are not certain that you are able to do what you plan with the land or property. In particular, retaining a strip of land does seem to be a bit of a concern. It is not uncommon for a “ransom strip” to be retained by a seller. That might be a piece of land required for building later on. By retaining that particular area, the seller may be intending to prevent building in the future.
In respect of restrictive covenants, the attach to land. Splitting the land between different ownerships does not bring a restrictive covenant to an end. The extent to which any restriction is binding on future owners of the land depends on quite a number of different factors. These include the purpose for the restriction in the first place, whether or not it was intended to bind future successors in title and whether or not the land with the benefit (not the burden) of the restriction still has a legitimate interest to protect.
If the covenantor is the person selling the property, there would be scope for negotiation. That may be preferable before committing to the purchase than pre-emptively trying to find a way around a particular situation that could arise in the future.
We would struggle to even provide general guidance on your position without considering all of the documentation and circumstances in detail. However, you should definitely discuss this with your solicitor before proceeding. Further, do not expect your solicitor to be psychic or to be able to know precisely what you need advice about. If you have specific concerns, raise them and ask for advice; this is what your solicitor is there for. Buying property is a big capital investment for most people. If there are any doubts or concerns, if these cannot be adequately addressed, it is often better to be disappointed and walk away than potentially buy property that could cause you difficulty in the future.
I purchased a property in June 21 and have only recently found out that the seller placed a restrictive covenant with this wording ” not to carry out any external alterations, extensions or additions to the property without the written consent of the owners (from time to time) of the Retained land.” I am concerned that this will affect the resale value of the property. My solicitor at the time did not point out the restrictive covenant, nor did the seller or the estate agent . I paid the market value for the property. What are my chances of getting this covenant moved?
A restrictive covenant cannot simply be removed. The basic position is that the agreement of the person with the benefit of the restrictive covenant needs to be reached. There are some other circumstances in which it may not be enforceable, such as if it has become obsolete. It is unlikely that this is the case here.
It appears to us that what has happened is that this was a sale of a property which was built by the seller on existing land, and in selling the land imposed a restriction preventing any further building on it, so as to benefit the retained land. This is not an uncommon thing to do.
It does raise the question as to whether or not your solicitor should have pointed this particular issue out to you. If they have not, there may be a basis of claim in negligence.
The basic position in relation to any professional negligence claim is to firstly establish what the duty of care was. The duty of care will be determined in part by the scope of the retainer. The retainer is the contractual agreement that you and your solicitor reached when you instructed them about what they were going to do and advise you on. However, even then there is a general duty on a solicitor to advise on risks that are not obvious to a client. It may be the case that they failed to advise you on the risk of this restrictive covenant applying.
Whilst we cannot give specific advice on our website and can really only provide general guidance as we do not know the precise circumstances of any matter, we suspect that you would have been provided with a transfer to sign, either called a TR1 (or more likely a TP1) and it is the transfer that would have contained the restriction on further building. Whether or not this is something your solicitor should have pointed out will, as mentioned, depend on what your solicitor agreed to do for you, but there was probably an obligation to, at the very least, draw your attention to this particular restriction.
If you would like to consider the matter in more detail, please do feel free to get in touch.
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My daughter is looking to buy woodland in order to plant more native trees and run woodland crafts courses and yoga retreats (requiring yurts for accommodation). Every woodland she has looked at to date comes with a covenant prohibiting use for commercial purposes. Running woodland craft courses and yoga retreats seems a fair use to out the land, in part so it’s not just left to rewild but actually contributes to a local economy and community. Any thoughts on the dream?
Thank you for your comment.
Whilst it sounds like what your daughter has planned would be a blissful place to go (and something that most solicitors would probably benefit from), if there is ever any doubt as to a restriction on the property or land, it is a risk to proceed.
Restrictive covenants are not easily avoided. What it comes down to is the intention behind the restriction and what is trying to be protected against. Even on a narrow interpretation, charging someone that attends a retreat is arguably a commercial purpose. Whilst we cannot provide specific guidance on our website, and in particular would need to consider the wording of the restriction and plans involved, if there is scope for argument (and there usually is when it comes to restrictive covenants) it is normally advisable to approach the person with the benefit of the restrictive covenant and ask the question, before committing to a purchase.
We are buying a property (A) with restrictive covenants which is adjacent to another title deed (B) that is owned by the same Vendor. The original restrictive covenants prohibit the Vendor from erecting any buildings. The Vendor is now trying to sell the us the A as “sale of part” (retaining only tiny strip of land) claiming that they need access to the Service Media. There seems a number restrictive covenants in TP1 specifically related to us maintaining that Service Media as wells as full indemnity.
1. Could selling this as a ‘sale of part’ be a way for them to remove the existing covenants and include additional covenants to be able to build houses on the adjacent land B?
2. Do the existing covenants transfer to a Buyer with a ‘sale of part’ transaction?
Thank you for your comment.
We cannot provide specific advice on our website or indeed anything that could constitute legal advice that could be relied on. This is primarily because every situation will be different and a proper consideration of the matter would be required. Your comment epitomises this, as it raises a lot of potential points which would need to be considered in detail.
You should definitely raise these issues with your conveyancing solicitor. You should not proceed with a purchase if you are not certain that you are able to do what you plan with the land or property. In particular, retaining a strip of land does seem to be a bit of a concern. It is not uncommon for a “ransom strip” to be retained by a seller. That might be a piece of land required for building later on. By retaining that particular area, the seller may be intending to prevent building in the future.
In respect of restrictive covenants, the attach to land. Splitting the land between different ownerships does not bring a restrictive covenant to an end. The extent to which any restriction is binding on future owners of the land depends on quite a number of different factors. These include the purpose for the restriction in the first place, whether or not it was intended to bind future successors in title and whether or not the land with the benefit (not the burden) of the restriction still has a legitimate interest to protect.
If the covenantor is the person selling the property, there would be scope for negotiation. That may be preferable before committing to the purchase than pre-emptively trying to find a way around a particular situation that could arise in the future.
We would struggle to even provide general guidance on your position without considering all of the documentation and circumstances in detail. However, you should definitely discuss this with your solicitor before proceeding. Further, do not expect your solicitor to be psychic or to be able to know precisely what you need advice about. If you have specific concerns, raise them and ask for advice; this is what your solicitor is there for. Buying property is a big capital investment for most people. If there are any doubts or concerns, if these cannot be adequately addressed, it is often better to be disappointed and walk away than potentially buy property that could cause you difficulty in the future.
I purchased a property in June 21 and have only recently found out that the seller placed a restrictive covenant with this wording ” not to carry out any external alterations, extensions or additions to the property without the written consent of the owners (from time to time) of the Retained land.”
I am concerned that this will affect the resale value of the property.
My solicitor at the time did not point out the restrictive covenant, nor did the seller or the estate agent .
I paid the market value for the property.
What are my chances of getting this covenant moved?
Thank you for your comment.
A restrictive covenant cannot simply be removed. The basic position is that the agreement of the person with the benefit of the restrictive covenant needs to be reached. There are some other circumstances in which it may not be enforceable, such as if it has become obsolete. It is unlikely that this is the case here.
It appears to us that what has happened is that this was a sale of a property which was built by the seller on existing land, and in selling the land imposed a restriction preventing any further building on it, so as to benefit the retained land. This is not an uncommon thing to do.
It does raise the question as to whether or not your solicitor should have pointed this particular issue out to you. If they have not, there may be a basis of claim in negligence.
The basic position in relation to any professional negligence claim is to firstly establish what the duty of care was. The duty of care will be determined in part by the scope of the retainer. The retainer is the contractual agreement that you and your solicitor reached when you instructed them about what they were going to do and advise you on. However, even then there is a general duty on a solicitor to advise on risks that are not obvious to a client. It may be the case that they failed to advise you on the risk of this restrictive covenant applying.
Whilst we cannot give specific advice on our website and can really only provide general guidance as we do not know the precise circumstances of any matter, we suspect that you would have been provided with a transfer to sign, either called a TR1 (or more likely a TP1) and it is the transfer that would have contained the restriction on further building. Whether or not this is something your solicitor should have pointed out will, as mentioned, depend on what your solicitor agreed to do for you, but there was probably an obligation to, at the very least, draw your attention to this particular restriction.
If you would like to consider the matter in more detail, please do feel free to get in touch.