Restrictive Covenants
Restrictive covenants are restrictions on what you can do with your property, whether that be to prevent certain uses or specific activities on a piece of land. These restrictions “run with the land” and therefore apply before and after ownership of land changes. The older the restrictive covenant is, the more difficult it may be to identify the land that has the benefit. It may also be the case that very old covenants have been rendered obsolete because they have been breached many times over the years without the owner of the benefiting land doing anything about it.
Restrictive covenants can prevent land being developed or the use of the land being changed.
A common misconception is that planning permission will override the validity of the covenants. Unfortunately, this is not the case, issues of planning and issues of restrictive covenants are separate matters and are dealt with in completely different ways.
Our team can help you with advice upon:
- Enforceability – whether the restrictive covenant remains binding or has been lost.
- The nature of the restrictive covenants and whether you or another party’s intentions for the land will trigger a breach.
- Disputes concerning restrictive covenants that either adversely affect your land or which benefit your land but a neighbouring property owner is ignoring or threatening to ignore.
- Professional negligence of solicitors in not identifying the risks of covenants that adversely affected your land when they acted for you in your purchase.
- Development of neighbouring land over which you have restrictive covenants, easements or other rights.
- Advice as to the possibility of obtaining an indemnity policy in respect of a possible future claim by a neighbouring land owner that you have or are going to breach covenants that their land has the benefit of.
Unless the dispute can be dealt with by agreement or alternative dispute resolution, it may have to be resolved by pursuing an application at the First Tier Property Chamber or Court.
Our team are at hand to help you with any restrictive covenant issues you may have regarding your property.
Restrictive covenants can prevent some uses of your property or prohibit an extension you might want to build or inhibit your ability to sell.
A common misconception is that planning permission will override the validity of the covenants. Unfortunately, this is not the case, issues of planning and issues of restrictive covenants are separate matters and are dealt with in completely different ways.
During title investigations when you purchase a property the existence of such covenants should be flagged to you by your solicitor. Sometimes an indemnity insurance policy can be obtained to insure against issues arising. If that did not happen when you bought the property, you may be able to obtain a policy now, as long as no one has asserted they have the benefit of the restrictive covenant that you want to remove from your land.
Our team can help you with advice upon:
- Enforceability – whether the restrictive covenant remains binding or has been lost.
- The nature of the restrictive covenants and whether you or a neighbour’s intentions for the land will trigger a breach.
- Disputes concerning restrictive covenants that either adversely affect your property or which benefit your property but a neighbouring property owner is ignoring or threatening to ignore.
- Professional negligence of solicitors in not identifying the risks of covenants that adversely affected your property when they acted for you in your purchase.
- Development of neighbouring land over which you have restrictive covenants, easements or other rights.
- Advice as to the possibility of obtaining an indemnity policy in respect of a possible future claim by a neighbouring land owner that you have or are going to breach covenants that their land has the benefit of.
Unless the dispute can be dealt with by agreement or alternative dispute resolution, it may have to be resolved by pursuing an application at the First Tier Property Chamber or Court.
Our team are at hand to help you with any restrictive covenant issues you may have regarding your property.
Key contact
Insights
Get valuable insights from our articles.
Frequently Asked Questions
Find answers to your most pressing questions about our services and processes.
A restrictive covenant if breached can only be enforced by the owner of the land with the benefit of the right. This can often be hard to establish with old covenants especially where lots of smaller plots have been carved out of a large estate of land and each small plot has been built upon and sold to different owners. It may be the case; if one developer has built numerous houses on a large piece of land; that the buyers of each plot have been granted rights to enforce restrictive covenants against every other plot owner. If you require any assistance in establishing who has the benefit of restrictive covenants on your land, we can take steps to look into this for you.
If you breach a restrictive covenant, you can be ordered to put the land back into the condition it would have been had the breach not occurred. The Property Chamber Lands Tribunal also has the right to order a payment of a sum of money in compensation instead of ordering the land to be reinstated.
If a restrictive covenant has been properly constructed and is still enforceable, it is legally binding. But it is not a matter for your Local Authority to solve – it is for the land owners to take steps to enforce a covenant or seek to remove a covenant from their land title via the Property Chamber Lands Tribunal or Courts. If you require advice as to whether a restrictive covenant is still enforceable we would be happy to help you.
In a scenario where your conveyancing solicitor failed to draw to your attention the existence of restrictive covenants adversely affecting your property when you bought it there could be a claim for professional negligence against them if you now want to do something that the restrictive covenant prevents.
A common scenario is where the owner of a house with a very large garden wants to subdivide their plot and build another house on it to sell. Their land has a restrictive covenant that limits the plot to one house. They obtain planning permission without any objections and go ahead and build a new house in the garden. When they come to sell that new house, it is almost inevitable that they buyer’s conveyancing solicitors will see the restrictive covenant and demand that the owner take steps to ensure that the buyer cannot be sued over the breach. Indeed they may advise their client that the risk of going ahead with the purchase (particularly where they wanted to buy with a mortgage) is too great and they should not proceed.