Expert advice on restrictive covenants
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A covenant is essentially another word for a promise. A restrictive covenant is a promise made by the owner/occupier of a piece of land agreeing not to do something on their land – i.e. it is a restriction on the use of that land in some way.
Crucially, restrictive covenants do not just restrict parties who agreed to them in the first place. They can run with the land and every subsequent owner/occupier of that land will also be bound if certain criteria are satisfied.
A common restrictive covenant is one which prevents the owner of residential property from carrying on a business there.
In most cases, a restrictive covenant is only valid if it gives some ‘benefit’ to an adjoining piece of land. With the above example, the benefit would be keeping the character of the neighbourhood as a residential one.
Other examples of restrictive covenants include:
- Restrictions on building new structures on the land
- Restrictions to erect only one dwelling
- Restrictions concerning access over the land
Even if a covenant is expressed as a positive obligation, it can still be deemed a restrictive covenant if it restricts the use of the land on a true interpretation.
Why are restrictive covenants important?
There are two broad situations in which you could be affected by a restrictive covenant:
1. There is a restrictive covenant over your property. Perhaps it is preventing you from using your property how you wish, such as preventing you from developing your land? Or maybe the owner of the benefitted property is alleging you have broken a restrictive covenant?
2. Your property enjoys the benefit of a restrictive covenant on another property. If your neighbour has breached their restrictive covenant, what can you do to enforce it?
Truth Legal can help you in any of these circumstances. Our property litigation solicitors can provide you with clear, practical guidance on your legal situation. Call us today to arrange a consultation with one of our experts.
Do I have to comply with a restrictive covenant on my property?
In most cases: yes. The owner/occupier of the land which benefits from a restrictive covenant can take legal action against you to enforce it.
It can sometimes be difficult to identify who benefits from a restrictive covenant as the Land Registry does not have any obligation or power to record the benefit on the benefitting land’s title.
Even if any action against you seems unlikely, if you breach a restrictive covenant it can cause difficulties when trying to sell your property. You will effectively be asking the buyer to take on responsibility for you breaching the covenant, because any enforcement action will be taken against the owner of the property at that time.
There are situations in which a restrictive covenant may no longer be valid. For example, when there is no person in existence that could enforce it.
Additionally, a restrictive covenant which does not benefit another piece of land will usually not be enforceable – though there are exceptions to this when the restrictive covenant has been imposed by certain organisations, such as local authorities or planning authorities.
The legal position is complex and it is important to take specialist legal advice as to whether a restrictive covenant is likely to be enforceable.
What can I do about a restrictive covenant?
There are various options in relation to restrictive covenants:
- A form of insurance policy can be taken out to guard against the possibility of enforcement action by the owner/occupier of the benefitted land.
- An application can be made to the Lands Chamber of the Upper Tribunal to discharge or modify a restrictive covenant where you can show certain grounds apply. The most common grounds are that the covenant has become obsolete or it impedes reasonable use or development. It is likely that compensation will be payable even when an application is successful.
- An application can also be made to the County Court seeking a declaration that the restrictive covenant is unenforceable.
- Attempts can be made to negotiate the release or modification of the restrictive covenant with the owner/occupier of the benefitted land in return for a payment. Specialist advice should be sought in relation to a suitable level of compensation.
Both applications to the Lands Chamber and the County Court require notice to be served on the owner/occupier of the benefitted land. Once this has been done then it becomes impossible to obtain insurance.
It is important to be aware that negotiating a release or modification with a party who appears to have the benefit of a restrictive covenant will not bind any other parties who still have the benefit.
This is a complex area of law and, before taking any action, it is crucial to seek specialist legal advice. We recommend that you discuss your circumstances with one of our property litigation solicitors.
How can I enforce a restrictive covenant which benefits my property?
If you are aware of a restrictive covenant which benefits your land and your neighbour has breached it (or is about to), you may have a number of options to enforce your property rights.
These can include seeking an injunction to prevent your neighbour from taking the action in question, or claiming damages for a breach which has already happened.
Again, it is important that you obtain legal advice before taking any action yourself. This ensures you are aware of your position and allows you to consider the best course to take in the circumstances.
How can Truth Legal help?
Truth Legal was founded on the idea of providing ethical and effective legal services to all of our clients. This means being open and honest, giving clear, helpful advice, and protecting your rights.
We are based in Harrogate with presences in York, Manchester, and London.
How much will our service cost?
Truth Legal offers affordable fixed fees or hourly rates – allowing you a flexible and cost-effective service. You may also have Legal Expenses Insurance on your home insurance policy allowing some or all of your legal costs to the paid by your home insurance.
If you would like expert advice on restrictive covenants, tailored to your unique situation, contact Truth Legal today to explore your options.