Restrictive covenants are legal conditions that attach to land and that bind the owners and occupiers. They are intended to ensure that land is used in a beneficial way, avoiding irritations and actions that could reduce the property value or cause nuisance.
Summary
- What is a Restrictive Covenant?
- How are Restrictive Covenants Used?
- Enforcing Restrictive Covenants
- How Can the Benefit of a Restrictive Covenant be Passed On?
- Challenging Restrictive Covenants
- Contact our Property Law Solicitors
What is a Restrictive Covenant?
A restrictive covenant is a contract made between two owners of land. One party agrees not to carry out a certain action on their land for the benefit of the other landowner.
Restrictive covenants generally arise when someone sells part of their land. By limiting what the purchaser can do, the seller will be able to enjoy the land they have retained without fear of their new neighbour doing something they do not approve of.
Newbuild homes often come with several restrictive covenants. Common examples of restrictive covenants include:
- Not to build on land
- Not to run a business from the property
- Not to have livestock on the property
- Not to divide a property into flats
- Not to carry out any alterations to the property without written consent of the party with the benefit of the restrictive covenant
How are Restrictive Covenants Used?
Restrictive covenants are used for the benefit of adjoining landowners. They are generally intended to keep an area pleasant in character and avoid anything which could cause a nuisance. For example, if someone was able to start a business in their newly built home, it could be noisy and attract traffic to the road, which would be unwanted by other homeowners.
Positive Examples
Positive covenants are similar but require the landowner to take certain actions in respect of the land. Examples include:
- Maintaining the land
- Repairing fences
- Putting up buildings or walls and fences
Enforcing Restrictive Covenants
If someone has breached a restrictive covenant, you may be able to take enforcement action if you have the benefit of the covenant. If someone else has the benefit of the covenant, they should be the one to take action.
By way of example, if you live in a flat, the lease will usually contain a range of restrictive covenants. Examples include no noise outside of 7 am and 10 pm, no musical instruments and no pets. If someone has breached one of the restrictive covenants in their lease, it is for the landlord to take action to stop this. As a fellow flat owner, you can ask the landlord to enforce the covenants against the offending party. The lease will usually contain a clause requiring the landlord to do this.
In the case of a newbuild property, you can ask the developer or their successor in title to enforce the covenants if you are unable to resolve the matter amicably with your neighbour.
When are Restrictive Covenants Not Enforceable?
A restrictive covenant can only be enforced if it is unambiguous. It cannot be enforced if it is against competition law or if it is contrary to public policy.
It is also the case that the land in question must be clearly defined.
The person wishing to enforce the covenant must be able to show that they have the benefit of it. They need not be the original covenantee, but they will need to have been assigned the benefit of the covenant or the covenant will need to be annexed to the land (and not to an individual).
How Can the Benefit of a Restrictive Covenant be Passed On?
If you buy a property that benefits from restrictive covenants against neighbouring land, the benefit of these can be passed in certain circumstances and three ways:
- The covenant must ‘touch and concern’ the land in question;
- You must have an interest in the land; and
- The covenant is annexed to the land; or
- The covenant is part of a development scheme
When is a Restrictive Covenant Enforceable Between Successors in Title?
If the benefit of a restrictive covenant was passed on to you when you purchased a property, then you have the right to enforce the restrictive covenant against the neighbouring landowner, who agreed to the covenant, or against their successor in title.
Challenging Restrictive Covenants
If you wish to be released from the terms of a restrictive covenant, you may need to speak to an expert property lawyer. The law in this area can be complex and it is not always straightforward to determine who has the benefit of a restrictive covenant and how it can be removed.
In some cases, it may be possible to negotiate an end to a covenant. It is crucial that this is dealt with formally so that the person who formerly held the benefit of the covenant cannot come back in the future and claim that it is still in existence.
If a covenant is obsolete or it impedes reasonable use of the land, it may be possible to apply to the property court known as the Upper Tribunal (Lands Chamber) to have the covenant discharged or modified.
It may also be possible to do this if the person with the benefit of the covenant agrees, either expressly or by implication, and where no injury will be caused by the ending of the covenant.
Contact our Property Law Solicitors
If you wish to enforce or discharge a restrictive covenant or find out more about your property rights, we will be happy to hear from you.
If you would like to speak to one of our expert property lawyers, email us at info@witansolicitors.co.uk or fill in our contact form and we will talk through your situation with you and discuss how we can help.
