The law of restrictive covenants is a complex area and a mystery to many landowners, some of whom believe that restrictive covenants cannot be challenged, however, this is not the case.
Restrictive covenants affecting land arise out of an agreement that one party will restrict the use of its land in some way for the benefit of another’s land. The restrictive covenant is capable of being enforceable by one party’s successors in title against the other’s successors in title, as well as between the original contracting parties. Therefore, if your property is subject to a restrictive covenant and you wish to modify or develop it, you may discover that you are prevented from doing so if the covenant remains on the title.
Checking the title deeds to your property will quickly reveal whether there is a valid restrictive covenant which affects the land. If you find that your property is affected by a restrictive covenant, you should firstly consider whether indemnity insurance is available in order to provide you with protection in the event that someone with the benefit of the covenant takes legal action against you for breaching the covenant. If insurance is not available then you should try and identify the owners of the land which benefits from the covenant and try to reach a compromise with them which will usually involve the payment of money for the release of the covenant. If neither of the above are possible, then an application can be made to the Lands Tribunal seeking an order, which wholly or partially discharges or modifies the restriction.
The most common grounds for the Lands Tribunal agreeing to discharge or modify the restriction are that the restriction is obsolete due to the change in the nature of the neighbourhood since the time it was originally imposed, or that the restriction prevents the reasonable use of the property and modification would not result in those entitled to the benefit of the covenant losing something which provided a practical benefit of substantial value, and, money would be an adequate compensation for any loss suffered.
An application to the Lands Tribunal is a lengthy process sometimes taking in excess of 2 years and can prove to be very costly. Also, the result of an application to the Lands Tribunal is by no means certain, there is a great deal of discretion given to the Lands Tribunal to assess what they believe to be a practical benefit of substantial value.
An applicant will need to instruct an expert to report on whether the person entitled to the covenant would loose any practical benefit of substantial value. It is the expert’s responsibility to calculate any decrease in value which the proposed development might have on the land entitled to the benefit of the restrictive covenant.
Communication and negotiation are key in these situations, it is important to approach those with the benefit of the covenant and try to reach some sort of compromise. Providing them with a copy of the expert report is a good starting point. This may reassure the objector that they have nothing to fear in loosing the benefit of the covenant. If a compromise cannot be reached in the early stages and an application to the Lands Tribunal is made, negotiations between parties can continue right up to the final moments. Trial should be the absolute last resort for all parties concerned.
Compensation resulting from the removal or modification of a restrictive covenant is based upon the reduction in value of the property that had the benefit of the restrictive covenant.
It is also left to the Lands Tribunal to decide who pays the costs of the proceedings, more often than not the applicant will usually end up paying the costs of those who benefit from the covenant, whatever the outcome.
Restrictive Covenant Report
If you have a restrictive covenant which may affect your freehold land, our property litigation team can consider your circumstances, by way of written report. The written report will set out our advice and identify a strategy to achieve your objectives moving forward on the basis of our advice.
Our report will consider all the circumstances giving rise to your query, undertake a full review of all relevant documentation and apply the information gleaned from this review to the appropriate legal provisions. We estimate our fees to prepare our Restrictive Covenant Report will be in the region of £1,000.00 – £1,500 plus VAT and disbursements. Please be aware that cost estimates are provided to give you an idea of the likely costs involved only and costs will vary depending upon the level of papers and complexity involved.
For more information on our Restrictive Covenant Report, please contact a member of our team on 01772 258321.
We are looking at purchasing a property with a land covenant that prevents the property being used for anything other than residential purposes.
My wife operates as a sole trader a part-time beauty salon out of a spare bedroom. Does this covenant mean she can not operate from the potential new property?
Hi I would be very interested to know this as well as we are going through the same thing. I believe the covenant is made by Central Beds Council when the property was built in 1968 and I am also hoping to use it to have an at home salon.
Could you let me know what advice was given please?
If there is a covenant saying I need to share costs of a cesspit with my neighbour and I get my own cesspit installed and disconnect from his, would this be grounds for the covenant to be obsolete? Also there is a covenant saying that I can not make any changes to my house without their permission, the previous neighbours allowed major changes to our buildings and it is only the new owners who are refusing to give permission for a small extension. They will give us permission if we agree to a load of other covenants which we feel are unreasonable. Does the previous changes to the buildings not set a president?
I am selling a house bought by my parents from the council. There was a restrictive covenant protecting the fir trees on the front lawn. I assume this is void, because there were no fir trees on the front law when the house was bought, nor any record of there being fir trees.
There were, however, 6 PINE trees, which were removed 5 years after purchase when they blew down. The council actually removed them, for health and safety reasons.
This raises several interesting points.
1. Was the original covenant void, being factually incorrect?
2. If a storm violates a covenant, is that a breach by the owner?
3. What about breaches on grounds of public safety?
We have the benefit of a restrictive covenant on our neighbour’s house not to add any additional windows on the south elevation which overlooks us. The neighbour wanted to extend his house and put 10 windows in addition to the one window already on this elevation. We mentioned the restrictive covenant and he said he wouldn’t put in the other windows. However, he’s now demolished the entire house and has started rebuilding it with new windows in this elevation. Does the fact he’s demolished the original house mean the restrictive covenant is no longer enforceable?
My house was purchased from the developer and my covenant is in the name of a “ghost company” of which he allowed to be struck off the register. No harm as he had not transferred the freehold. Upon sale of the final property he did however the last 2 properties (sold at the same time) have covenants with the new company. We are all shareholders of this company (as the developer passed a share to each house) however the 2 owners who have the correct paperwork are almost blackmailing us to change the set up of. They are doing this as 1. we have covenants in the incorrect name and 2. they pay the lions share hence trying to turn it in their favour. Developer long gone out of the picture. We bought 13 years ago hence too late to return to our own solicitor. Can you help?
I have a restrictive covenant on the head lease of my 3 bed flat that states it is for use by one family only.
I have let to three sharers.
Can I challenge this covenant? It dates from 1968.
Hi
My parents purchased their property in 2002, not being told by the Solicitor at the time that there is a restrictive covenant on the use of the front part of the house. We are restricted in converting the front garden into a driveway. My parents are now in their 60s and it is becoming increasingly difficult to find areas to park on the road within walking distance of the house, as neighbours have a minimum of two cars and up to 4, taking up majority of available spaces. My mother has arthritis and often walking is impossible.
Is this easily challenged? A driveway will help end many problems. I understand the first owner of the house, many many years ago, found it convenient to apply a restrictive covenant as there weren’t as many vehicles as there are today.
Thank you.
Hi, there is restrictive convenants on my parents (titles) to make sure that the small bit of driveway which their neighbour has right of way over is maintained. my parents are now in the process of selling the house and the neighbour is delaying signing a certificate of compliance with the new owner and is trying to make my parents lift/alter the restrictive covenant (that also stops the neighbour building on land that was once my parents and was sold to the neighbour, the neighbour knew the covenants where in place when they bought it and signed the compliance certificates at the time)
Can they delay the sale like this….
Hi
I own 5 out of 6 buildings in a courtyard. 4 of my 5 have a covenant restricting use to Office or Medical Consulting Rooms. My unrestricted building had no such restriction and I have converted it to residential use. The owner of the other building doesn’t want me converting my 4 remaining buildings to residential use for no apparent reason other than to be difficult! What can I do?!
Is it possible for a member of the public to object to the lifting of a covenant which was made between a county council and the local authoriity relating to public property? The covenant restricts the use to stautory functions only by they want to sell it to someone who wants to use it for student accommodation which is not a starutory function/. Most of the local people object to this development and want it as open space and for cultural purposes, but the lA says its imply an agrement between two landowners and can be ignored or lifted. Can this covenant be enforced by a third party?