When moving into a new home, you may want to start decorating or carry out more extensive property development, but are you allowed to? If your property deeds contain a restrictive covenant, you may be limited in what you are allowed to do to the appearance or conformity of your new home or flat. In this article, we look at some commonly asked questions about restrictive covenants and breaches of restrictive covenants.
What is a restrictive covenant?
Restrictive covenants are obligations imposed on properties or land that are often written into the property transfer or lease, usually because of a sale where the seller retains nearby or adjoining land. Restrictive covenants are typically found within deeds of new builds, multi-dwelling residential properties or housing estates. However, they can commonly feature on ex-local authority homes, older properties or where a plot of land is sold, with the seller retaining the remaining land.
What are common Examples of Restrictive Covenants?
Restrictive covenants can prevent homeowners from making specific alterations to their property or land, including not being able:
- To erect any building or structures on the land that has been acquired.
- To use the land for any business activity.
- To use the land other than for agricultural use and not to carry out any building or residential development.
- To erect more than one dwelling on the land.
Some very old covenants may be considered unenforceable if it is impossible to trace the original landowner or builder, if the wording is ambiguous and therefore difficult to apply, or because the covenant has become historically obsolete. However, this should not be relied upon, and it is advisable to seek expert legal advice if you have a restrictive covenant on your property that you wish to challenge or are unsure if you have breached.
How do I find out what restrictive covenants are on my property?
If the restrictive covenant was created on or after 1 January 1926, it must be entered into the Land Charges Register. Before purchasing or making changes to a property, you should conduct checks of any charges through that register. Neighbours, former owners, property lawyers or surveyors may also make you aware of any restrictive covenants.
It is essential to be mindful that the existence of a restricted covenant is only sometimes noted on the title records of the property that benefits from it.
What happens if I breach a restrictive covenant?
In most cases, restrictive covenants are automatically enforceable between the original parties involved. Therefore, any breaches that are not remedied, which typically is the court’s preferred course of action, – such as removing features you have added to a property, making good property alterations, or taking down larger building works such as an extension – could result in legal action by the person with the benefit of the restrictive covenant. Remedies may include that person applying to the court for damages, which could result in you having to pay out a substantial amount in compensation. Alternatively, the person with the benefit of the restrictive covenant could seek injunctive relief, which would stop you from carrying out work or having it demolished if the building work has already been completed.
If you face a restrictive covenant claim against you, you must speak to a property solicitor who can advise you. From the perspective of a burdened owner, enforceability depends on a range of factors, including whether the covenant:
- Is negative – positive covenants don’t typically run with the land.
- Correctly registered.
- Was taken to protect land that was retained by the original covenantee
- if there is a local authority involved – a local housing authority can enforce a covenant against a covenantor’s successor in title, even if the local authority does not hold an interest in the land benefitting from the covenant
- genuinely benefits land owned by the person seeking to enforce it
- the burden was meant to run with the land
- was correctly drafted/constructed – i.e. it is not ambiguous, future events were anticipated, it is possible to determine which land is subject to the restrictive covenant, and there is a certainty that the covenant covers land and buildings.
If you decide to sell your property and it is discovered you have breached a restrictive covenant, providing that it has gone unchallenged for more than 12 months, you may be able to obtain indemnity insurance to protect you and your purchaser.
Removal of a restrictive covenant
When you cannot obtain specialist indemnity insurance, you could try coming to an agreement with the person who has the benefit of the covenant and obtain a ‘retrospective consent’ for work. If you cannot trace that person, they refuse permission, seeks compensation for the breach or charge a fee that is prohibitive, you can apply to the Upper Tribunal (Lands Chamber) – formerly the Lands Tribunal – to modify or discharge restrictive covenants. However, this is a lengthy and costly process with no guarantee of success. If you want to remove a restrictive covenant or need advice about a breach of restrictive covenant, you should speak with a property solicitor with specialist knowledge of this complex area of law.
Property Law Solicitors London
At Phillips Lewis Smith, our specialist property law and dispute resolution solicitors are experienced in dealing with all aspects of restrictive covenant disputes, helping clients deal with the implications of breaching or enforcing a restrictive covenant. We can advise you on the remedies available, guiding you through the entire process. Our team is confident we will achieve a positive outcome for your case through expert legal support.