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The most common grounds for the Lands Tribunal agreeing to discharge or modify the restriction are that the restriction is obsolete due to the change in the nature of the neighbourhood since the time it was originally imposed, or that the restriction prevents the reasonable use of the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.
My neighbour has erected three six by six foot lap fence panels with supporting timber fence posts adjacent to my property boundary where the original 1 metre high chain linked fence is.
The owner was made aware of a valid and enforceable 1993 year restrictive covenant (not to alter the position type and height of existing walls and fences (if any) between the enclosed rear gardens of the Property and the adjoining land laid out to an open plan design)
Due to north facing gardens, the open plan gardens benefited from easterly and westerly sun positions, however now I have no westerly sun in my garden, this is having a negative impact on my mental wellbeing and drastically reduced my gardens daylight adversely affecting my amenity to an unacceptable level.
It appears that the only solution I can obtain from this is to apply for a mandatory injunction for the owner to remove this fence.
Will I need to apply in a civil court and what legislation covers this breach?
Hello there,
I am looking at buying this property, but on doing a title search it shows that there is a covenant on the land at the side of the house which dates back to 1878,as per details below,it also states once about a lease made in 1878, but no copy ever available, condsidering the age when the covenant was made could these be removed easily, or is it easier to pay for Indemity insurance, if in the future I wanted to build on the land or sell off seperately. Or should I consider not buying this??? As it mentions minerals,and other materials on the land dated 1899 but all these areas are residential areas now, not mining areas.I have done a mining report, which states no mine shafts or openings there.
This register describes the land and estate comprised in the title.
CITY OF xxxxxxxx
1 (06.09.1984) The Freehold land shown edged with red on the plan of the above Title filed at the Registry and being OF XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
2 The mines and minerals are excepted from the registration land tinted blue on the title plan.
3 There are excluded from the registration of the land tinted pink on the title plan the mines and minerals reserved by a Conveyance of the land thereof dated 27 February 1899 made between (1) XXXXXXXXXXXXX and (2) XXXXXXXXXXXXX in the following terms and the land is also subject to the following ancillary rights of working:
EXCEPTING AND RESERVING nevertheless out of the Conveyance thereby made unto the said XXXXXXXXXXXXXXXXX his successors and assigns or other the person or person for the time being entitled thereto as well during the continuance of the said Indenture of Lease as at all times thereafter all the mines and minerals metals ores and other substrata whether of coal stone clay sand or any other metalliferous or mineral substance or produce whatsoever whether opened or unopened worked or unworked within or under the said piece of land (all which were thereinafter collectively referred to as “the said mines and minerals) with full liberty and power for the said XXXXXXXXXXXXXXXXXXXXX his successors and all persons claiming under him or them at all times thereafter by underground workings only to win work and carry away the whole of the said mines and minerals and also to carry away the produce of any other mines nevertheless making to the said XXXXXXXXXXX his heirs and assigns reasonable compensation for any damage or subsidence which might be occasioned to the said piece of land or to any building thereon by reason of such working and carrying away of the said mines and minerals as aforesaid or by the exercise of such powers as aforesaid such compensation to be settled in case of dispute by
Arbitration in accordance with the subject to the provisions of the
Arbitration Act 1889 or any statutory modification thereof for the time being in force.
NOTE: The Lease referred to was dated 27 April 1878 and made between
(1) XXXXXXXXXXXXXXXXXXXXXX (2) XXXXXXXXXXXXXXXX (3) The Ecclesiastical Commissioners for England and (4) XXXXXXXXXXXXX. No copy of the lease was supplied on first registration
1 of 3
A: Property Register continued
4 The land has the benefit of the following rights granted by a
Conveyance of the land in this title dated 4 January 1955 made between
(1) XXXXXXXXXXXX and (2)XXXXXXXXXXXXXXXXX (Purchasers):-
“TOGETHER with the right for the Purchasers and their successors in title to enter upon so much of the property on the Northern side of the property hereby conveyed as may be necessary for the purpose of repairing or rebuilding the wall on the Northern side of the property hereby conveyed the Purchasers making reasonable compensation to the owner or owners for the time being of such adjoining property for any damage occasioned thereby”
B: Proprietorship Register
This register specifies the class of title and identifies the owner. It contains any entries that affect the right of disposal. Title absolute
1 (01.02.1989) PROPRIETOR: XXXXXXXXXXXX
2 The Transfer to the proprietor contains a covenant to observe and perform the covenants referred to in the Charges Register and of indemnity in respect thereof.
C: Charges Register
This register contains any charges and other matters that affect the land.
1 A Conveyance of the land in this title and other land dated 2 August 1902 made between (1)XXXXXXXXXX and (2)XXXXXXXXX contains covenants details of which are set out in the schedule of restrictive covenants hereto.
2
3
Schedule of restrictive covenants
1 The following are details of the covenants contained in the Conveyance dated 2 August 1902 referred to in the Charges Register:-
“The said XXXXXXXXX for himself his heirs executors administrators and assigns and to the intent that the covenants hereinafter contained shall so far as they are of a restrictive nature or purport be binding also on the hereditaments to which they respectively relate into whosoever hands the same may come hereby Covenants with the said XXXXXXXXXXX his heirs executors administrators and assigns that he the said XXXXXXXXXXX his heirs executors administrators and assigns will not carry on or permit to be carried on upon the said pieces of land hereinbefore first secondly and thirdly described or on any part or parts thereof or in or upon any building to be erected thereon or on any part or parts thereof any noisy noxious or offensive trade or business whatsoever and also will not erect on the said pieces of land hereinbefore first secondly and thirdly described or on any part or parts thereof any pigstye fowlhouse or pigeon house And also will not erect on the pieces of land hereinbefore first and secondly described any dwellinghouse of a less annual value than Sixteen pounds And also will not erect any building (other than bay windows and boundary walls) on the pieces of land hereinbefore first and secondly described nearer to Hucknall Lane aforesaid than the building line shown on the said plan”.
NOTE 1: The land in this title forms part of the land firstly described
Title number NT
2 of 3
Schedule of restrictive covenants continued
referred to above
NOTE 2: The building line referred to above is the line of existing buildings.
Dear sir there are 101 freehold chalets on our site each one has a restrictive and a positive covenants. In our land registry deeds it says that sections 18 to 30 of the landlord and tenants act are incoperated into our deeds. We have a freeholder who own the common parts eg private road paths etc.However we cant legally go to the lands tribunal,we dont have the right to manage,and we cant force him to sell the freehold.also when he sends the service charge bill the summary of rights and obligations is all about landord and leases etc,is this right or is the deed defective.incidentally all the chalets were once leasehold
Dear Lucy
Thank you for your enquiry.
In order to fully and properly advise you, we would need to view the title documentation for the properties concerned. We would also need to speak to you to obtain some more information about your situation. Ultimately there would be a cost associated with any work that we complete on your behalf, with your permission, but we are able to give you an indication of that cost beforehand.
If you would like to find out more about either or both properties concerned, it is possible, for a small fee, to request title documentation by clicking on the Land Registry website within http://www.gov.uk. You can do this by clicking on “Search property ownership information” at the link below. You can also obtain other information about land registration at the “Practice guides” section.
The link is: https://www.gov.uk/government/organisations/land-registry
If you would like to discuss things further, please do not hesitate to contact me on the telephone number or email address listed below. Alternatively, you may contact a member of our Commercial Property team; to do so, please call 01772 258321 in the first instance and ask for a member of the team.
Kind regards
Matthew Astley
01772 429209
matthew.astley@harrison-drury.com
Hi Fred
Many thanks for your comment.
When a restrictive covenant has the effect of ‘running with the land’, it simply means that it will not become fall away should the land be sold on to another or party, and it will remain enforceable as between successors in title.
In terms of subdivisions, if a restrictive covenant attaches to the entirety of a parcel of land, a subdivision will not affect this. There are exceptions to this, such as in circumstances where the restrictive covenant only ever affected part of the land, or where the burdened and the benefiting land become within the same ownership.
Should you have any further queries please do not hesitate to contact me on 01772 429 210 or at alex.walmsley@harrison-drury.com.
Kind regards
Alex Walmsley
Can you confirm what “Covenants run with the land.” means ?
We think that it means …
A covenant is usually between two bits of land. One has benefit and one has obligations. If both or either parts of land are sub-divided by sale or separation then the covenant still obligates or gives benefit to each sub-division.
some 13 years ago, my wife and I purchased a new home in Telford. The house was freehold but had a separate garage situated in a courtyard along with 4 other garages. Above them is a flat/ apartment. On the landy registry covenant it states that “not to assign or part share of any part of the garage in any way whatsoever. “We are now in process of selling to people who wish to rent out house and garage to same tenant but their solicitor advises them that unless amendment of covenant , they will not be able to . This has now halted the sale. What is best approach.
Hi
We have a boundary dispute with our neighbour as their charges register does not state anything about boundaries although it mentions a covenant but they have no details as to what the covenant means.
We have full title deeds which states which boundary we are responsible for and also shows neighboring properties however they won’t accept this. Our charges register has a covenant which breaks down in further detail and states about boundaries.
Our neighbours have said that their solicitor said as there charges register doesn’t state boundaries then they are not responsible for any and should negotiate a party boundary. I should also mention that the neighbour on their other side replaces the panels between them so they do not repair either side. They have said that they want to go 50/50 on the back fence but they don’t want anything to do with the front (although the two are joined). The other issue is they are in no hurry what so ever to do anything we approached them re the front fence 17 months ago and still nothing has been done as I quote “it is not a priority”. The back fence took us 6 months to get panels replaced we have tried speaking with them but he becomes aggressive and says he doesn’t have to do anything.
Is there anyway of finding out what the details of there covenant is or would the cost far outway the cost involved to replace the fences ourselves. Any advice appreciated.
We purchased our house freehold in 1984, we are the second owner and the covennant made with the original owner of the land (now deceased) and the property developer (no longer existing)was put on the deeds back in 1976 when sold to the first owner. We have had numerous years of rubbish and animal faeces on our property and it is getting worse, the deeds states that the property must be open plan and we must not put up walls or fences.
As the land is owned by us and borders on to a council footpath do you think we have a good enough reason to have the covennant removed?
Good morning
I read your article with interest and have a quick question if that is acceptable.
Our property is built on land sold by a neighbouring property and as such the title deeds have some restrictive covenants. Some of which are quite quirky…bushes cannot be allowed to grow too large, we cannot act in a way that would cause annoyance, or run a business from the property etc.
The original owner of the ‘main’ property who put in place the covenants has subsequently moved and I would like to remove these covenants…is this possible?