What Are Restrictive Covenants?

Restrictive Covenants are a highly complicated are of property law, where enforceability must be considered on a case by case basis. The wording and the intention of the covenant as well as the surrounding circumstances require careful consideration. Kew Law LLP will be delighted to assist you with this, but in the meantime, please consider this very brief article to assist with your general understanding of Restrictive Covenants.

Restrictive covenants  are binding conditions of a restrictive nature which form part of the owner’s title. Restrictive Covenants may be entirely prohibitive e.g. – a covenant not to cause a nuisance or conditional egg- a covenant not to build a garage without consent from the party with benefit of the covenant. Common examples of Restrictive Covenants may include:

• Preventing building, either over a certain area of land or preventing any further building on the entire plot;
• Preventing a business being run from the property / land;
• Prevention of undesirable activities or potential nuisances; and
• Prevention of owners making certain alterations to a property (e.g. extensions or altering the use).

How Enforceable are Restrictive Covenants on Property

Restrictive covenants differ from positive covenants as restrictive covenants may run with the land and consequently bind the successors in title (future owners). Broadly speaking for a Restrictive Covenant to be enforceable the covenant must “touch and concern” or relate to the property owned by the person trying to enforce the covenant. To be enforceable the covenant should restrict the use over ones property to benefit or preserve the value of another’s land. The requirement for any applicable planning and/or building regulation consents from the local authority is completely different and independent from any  requirements in respect of Restrictive Covenants. It is not uncommon for planning and building regulations to have been fully complied with only to find that a restrictive covenant exists on an owner’s title which has not been considered, resulting in hefty costs and possibly even remedial works.

Many Restrictive Covenants are designed to uphold standards or to ensure that all houses within a particular area are uniform. This is particularly the case with new build properties where developers will ensure that Restrictive Covenants are imposed within the Transfer Deed to prevent owners altering the overall appearance of the estate, which is particularly important while the developer still has more plots to sell. The Developer will not want for example ugly extensions built or large caravans parked in the driveways potentially putting off buyers. Nor does the Developer want an extended property put on sale competing with houses not yet sold. Developers will therefore frequently impose Restrictive Covenants either of a totally prohibitive nature (e.g. a total prohibition against parking caravans on the driveway) or conditional on consent (no extensions or alterations without the Developer’s consent). Many people are often in breach of their covenants by constructing a satellite dish or security cameras onto the front of their property. Please note that some developers will use covenant consents as an income stream by charging an administrative fee to issue the consent.

The most common remedy for breach of a restrictive covenant is damages. Although in some circumstances the individual who benefits from the particular restrictive covenant is may seek an injunction or will try to seek equitable relief. All of this is a potentially expensive business.

It is therefore extremely important to be aware of what restrictive covenants affect your property or land, before either making alterations, building or changing the use of your property in any way. If you feel there may have been a breach of Restrictive Covenants, it is important you do not contact anybody other than your solicitor about this as indemnity insurance may be an option to avoid either obtaining consent or the costs associated with a claim from a party with benefit of the covenant.

Please contact us if you require advice in respect of the complicated legal area of Restrictive Covenants.

Frequently Asked Questions

What is a restrictive covenant?

A restrictive covenant is a legally binding condition on a property title that limits how the land or property can be used. It “restricts” an owner rather than requiring them to take a positive action.

Can planning permission override a restrictive covenant?

No. Planning permission and restrictive covenants are entirely separate. Even with full planning approval, breaching a covenant can lead to legal action or the need to reverse the works.

Can a restrictive covenant be removed or changed?

Yes, through negotiation with the benefiting party or by applying to the Upper Tribunal (Lands Chamber). Success depends on factors such as age, relevance, and impact. It can also be very costly.

Do all new build homes have restrictive covenants?

Almost always. Developers typically impose them to maintain uniformity, protect the appearance of the estate, and avoid anything that might deter future buyers.

Examples

Example A

Running a Business from Home

Someone begins operating a dog-grooming business from their garage. The title deeds contain a covenant preventing any business use. Even though the activity causes no noise or nuisance, the covenant is still enforceable, and the owner must cease trading from the property.

Example B

Preventing Nuisance or Disturbance

A covenant prohibits activities causing nuisance. A homeowner begins renting the property for short-term holiday lets, leading to noise and frequent visitors. Neighbouring properties, who benefit from the covenant, seek relief due to loss of amenity potentially resulting in damages or an injunction.

Example C

Covenant consent not available when selling

A restrictive covenant required written consent to be obtained from the original Developer prior to any structural alterations in or additions to the property being made. A single-storey extension had been erected and planning and building regulation approvals obtained; however, when the client was asked to provide evidence of consent at the time of sale, she could not do so. After advice from her conveyancing solicitor at Kew Law, it was agreed that she would offer an Indemnity Policy in lieu of a retrospective consent.