166 thoughts on “Restrictive covenants on property”
Our neighbour applied 1 yr ago for a 6 m rear extension and a loft dormer conversion on the semidetached house. We are the impacted neighbour. It was rejected once, reapplied. It provided a false certificate of ownership, tried to encroach on our land. We object that we’ll lose light, privacy, it is overbearing, we have concerns that it will affect the house integrity, being done on DIY basis. The distance between the centre of the living room window and boundary is 2.5 m and the height (of rear ext) not specified on plans, we estimated 3.6 m. The decision is pending. No test regarding the daylight has been carried out. We then found out our (former council) house has restrictive covenants ‘excepting and reserving the light and air to any building to be erected conveyed so that all privileges of light and air now or hereafter to to be enjoyed over any parts of the property hereby conveyed’. How this can help us? Is the covenant outdated (was issued in 1980)? Can it stop the rear or most important, the loft conversion? What does it mean by light and AIR? Going to court is probably a long, expensive process, and the result cannot be guaranteed. Is it worth it? What advice can you give us, please? Thank you in advance. Best regards
Your query is a little too specific for us to be able to respond to on our website. We would need to investigate the situation and consider the relevant title documents (“deeds”, if you like) before we could form a view of matters.
What we can say is that planning policy and processes are separate to the legal aspects of property ownership. Put another way, your objections to the planning application appear perfectly valid, but the local authority is not generally going to be interested in legal matters, such as an encroachment/trespass into other land or the existence of restrictive covenants. They will focus solely on planning policy.
In relation to the restrictive covenant, these do not become “out of date” per se. Sometimes they can become obsolete due to changes in the nature and character of the area, but there is no defined period of time after which a restrictive covenant no longer applies, assuming that it has been correctly registered and is binding.
Restrictive covenants are often the source of extensive debate over their meaning. For example, a very old restrictive covenant might expressly reserve a right for a horse and cart to pass over the land. A horse and cart can generally be considered these days to be a “motorised” vehicle of some sort but what is most important to interpretation is to consider what it was at the time a restriction was entered that it intended to protect.
As mentioned, we are unable to make any real comment without considering the matter in context, which would mean looking at the history of the property and considering the relevant title documents. However, simply from the wording you quote, it does seem to suggest that the construction of further buildings may have been envisaged, providing that these do not interfere with the light and air passing into the property/land with the benefit of the restrictive covenant.
We buy 4 bed detached houses to be used as residential children’s homes for a maximum of 2 children. A house that we currently intend to buy has a restrictive covenant in the deeds stating no trade or business allowed. On houses that we currently rent for these purposes that have covenants planning has been granted by the local council to change the use from C3 dwelling to C2 business, with no issues. Our question is, when looking to buy properties now they all seem be coming up with covenants on them. We don’t make any structural changes to the properties as they will be used just as a residential properties but due to the fact they are residential children’s homes we have to change planning to a C2. Please can you advise if we need to take action on these covenants?
Matters of planning policy and implementation are separate to any legal aspects relating to any property and it’s use. Put another way, the existence of planning permission does not generally have any impact at all on the enforceability of restrictive covenants.
Sometimes, when an application is made to the Upper Tribunal to vary the terms of a restrictive covenant, the fact that planning permission has been granted can sometimes be a consideration, but this is generally inly going to be relevant to framing the intentions of the covenantor, that is the owner of the servient land subject to the restriction.
It is not often straight forward or easy to dispose of a restrictive covenant that was imposed with a view to binding all future owners of land. Normally the most cost effective solution is to agree a payment to the covenantee, this is the owner of the dominant land with the benefit of the restrictive covenant, in exchange for a deed of release.
If there are grounds to challenge the restrictive covenant, it is also sometimes very worthwhile to think about the extent to which the Upper Tribunal should be asked to effectively do away with it, or merely amend it to enable the covenantor to proceed with their plans.
Hello, September 2021 I bought a detached freehold Pub ( built 2007 ) . One side of my property there is a rugby club changing rooms and the other side is a cricket club changing rooms . I do have a restrictive covenant on my pub saying i can only sell it as a pub. The Rugby Club and cricket club have put in bars and both sell draught beers the last six months. I did not realise until recently when I saw barrels of keg beers delivered to them. they did have a covenant not sell beers but I did not realise they did it. so it is to late to stop them. My business is really finding it very difficult to survive. I ‘ve had a heart attack recently and trying to sell up but I cant due to my restrictive covenant.. Is it possible I could get it lifted so they can carry on but I could sell my business.
On the assumption that your land has the benefit of a restrictive covenant which you are able to enforce, then you may be able to take steps to obtain an injunction the clubs in question. As for whether or not the restrictive is binding on you will broadly turn on the same points.
Whether or not a restrictive covenant has become old or obsolete, and therefore capable of being the subject matter of an application to the Property Tribunal to have it removed, will depend primarily on the purposes for which the restrictive covenant was granted in the first place and whether or not there have been changes in the character of the area in question. We would need to consider the relevant title documentation and take some detailed instructions on the history of matters before we could form an opinion on the matter.
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Our neighbour applied 1 yr ago for a 6 m rear extension and a loft dormer conversion on the semidetached house. We are the impacted neighbour. It was rejected once, reapplied. It provided a false certificate of ownership, tried to encroach on our land. We object that we’ll lose light, privacy, it is overbearing, we have concerns that it will affect the house integrity, being done on DIY basis. The distance between the centre of the living room window and boundary is 2.5 m and the height (of rear ext) not specified on plans, we estimated 3.6 m. The decision is pending. No test regarding the daylight has been carried out. We then found out our (former council) house has restrictive covenants ‘excepting and reserving the light and air to any building to be erected conveyed so that all privileges of light and air now or hereafter to to be enjoyed over any parts of the property hereby conveyed’. How this can help us? Is the covenant outdated (was issued in 1980)? Can it stop the rear or most important, the loft conversion? What does it mean by light and AIR? Going to court is probably a long, expensive process, and the result cannot be guaranteed. Is it worth it? What advice can you give us, please? Thank you in advance.
Best regards
Thank you for your comment.
Your query is a little too specific for us to be able to respond to on our website. We would need to investigate the situation and consider the relevant title documents (“deeds”, if you like) before we could form a view of matters.
What we can say is that planning policy and processes are separate to the legal aspects of property ownership. Put another way, your objections to the planning application appear perfectly valid, but the local authority is not generally going to be interested in legal matters, such as an encroachment/trespass into other land or the existence of restrictive covenants. They will focus solely on planning policy.
In relation to the restrictive covenant, these do not become “out of date” per se. Sometimes they can become obsolete due to changes in the nature and character of the area, but there is no defined period of time after which a restrictive covenant no longer applies, assuming that it has been correctly registered and is binding.
Restrictive covenants are often the source of extensive debate over their meaning. For example, a very old restrictive covenant might expressly reserve a right for a horse and cart to pass over the land. A horse and cart can generally be considered these days to be a “motorised” vehicle of some sort but what is most important to interpretation is to consider what it was at the time a restriction was entered that it intended to protect.
As mentioned, we are unable to make any real comment without considering the matter in context, which would mean looking at the history of the property and considering the relevant title documents. However, simply from the wording you quote, it does seem to suggest that the construction of further buildings may have been envisaged, providing that these do not interfere with the light and air passing into the property/land with the benefit of the restrictive covenant.
We buy 4 bed detached houses to be used as residential children’s homes for a maximum of 2 children. A house that we currently intend to buy has a restrictive covenant in the deeds stating no trade or business allowed.
On houses that we currently rent for these purposes that have covenants planning has been granted by the local council to change the use from C3 dwelling to C2 business, with no issues. Our question is, when looking to buy properties now they all seem be coming up with covenants on them. We don’t make any structural changes to the properties as they will be used just as a residential properties but due to the fact they are residential children’s homes we have to change planning to a C2.
Please can you advise if we need to take action on these covenants?
Thank you for your comment.
Matters of planning policy and implementation are separate to any legal aspects relating to any property and it’s use. Put another way, the existence of planning permission does not generally have any impact at all on the enforceability of restrictive covenants.
Sometimes, when an application is made to the Upper Tribunal to vary the terms of a restrictive covenant, the fact that planning permission has been granted can sometimes be a consideration, but this is generally inly going to be relevant to framing the intentions of the covenantor, that is the owner of the servient land subject to the restriction.
It is not often straight forward or easy to dispose of a restrictive covenant that was imposed with a view to binding all future owners of land. Normally the most cost effective solution is to agree a payment to the covenantee, this is the owner of the dominant land with the benefit of the restrictive covenant, in exchange for a deed of release.
If there are grounds to challenge the restrictive covenant, it is also sometimes very worthwhile to think about the extent to which the Upper Tribunal should be asked to effectively do away with it, or merely amend it to enable the covenantor to proceed with their plans.
Hello, September 2021 I bought a detached freehold Pub ( built 2007 ) . One side of my property there is a rugby club changing rooms and the other side is a cricket club changing rooms . I do have a restrictive covenant on my pub saying i can only sell it as a pub. The Rugby Club and cricket club have put in bars and both sell draught beers the last six months. I did not realise until recently when I saw barrels of keg beers delivered to them. they did have a covenant not sell beers but I did not realise they did it. so it is to late to stop them.
My business is really finding it very difficult to survive. I ‘ve had a heart attack recently and trying to sell up but I cant due to my restrictive covenant.. Is it possible I could get it lifted so they can carry on but I could sell my business.
Thank you for your comment.
On the assumption that your land has the benefit of a restrictive covenant which you are able to enforce, then you may be able to take steps to obtain an injunction the clubs in question. As for whether or not the restrictive is binding on you will broadly turn on the same points.
Whether or not a restrictive covenant has become old or obsolete, and therefore capable of being the subject matter of an application to the Property Tribunal to have it removed, will depend primarily on the purposes for which the restrictive covenant was granted in the first place and whether or not there have been changes in the character of the area in question. We would need to consider the relevant title documentation and take some detailed instructions on the history of matters before we could form an opinion on the matter.