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The most common grounds for the Lands Tribunal agreeing to discharge or modify the restriction are that the restriction is obsolete due to the change in the nature of the neighbourhood since the time it was originally imposed, or that the restriction prevents the reasonable use of the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.
When a lady passed on her estate to the Baptist’s she made them sign a covenant. They are now totally ignoring the stipulations and want to put up a university and building estate on their land. Any advise? As we are at our wits end.
There is a restrictive covenant for the set of cottages that i live in which covers a piece of land that is designated as parking. The proprietor is shown as a ltd company which doesn’t exist anymore. We need to amend the covenant as there isn’t enough room for 1 parking space per cottage. I’m not sure where to start
Hi,
very interesting article.
I am the owner of a property since 1984 with restrictive covenants in place. The original conveyance is dated 1968 with several parties involved. one of which is now a dissolved company. My property shares two boundaries with railway land, which again is identified as “The Board” and I am not sure whether Network Rail ( as a legal entity) now are the other party as it was British Rail back in 1984. Looking at the deeds has shown a requirement to maintain walls and even a drain that is not on my property, so what type of legal advice should I be seeking to explain, and possibly challenge these covenants?
We have recently discovered that there is a covenant on our property for the space above 3m and below 1m. This was neither noted nor explained to us when we purchased the new build property 6 years ago. We are now wanting to sell the property and have accepted an offer but I’m worried that this will affect the sale going through. We live in an area next to a large newly built housing estate and I can see no benefit from someone holding rights to the space around my house.
I have made contact with the company (church commissioners) to start the conversation about lifting the covenant, does this sound like it should be a straight forward transaction? I’m worried they will try to capitalise on this and charge an inflated price.
We currently live on a residential development which, when it was first built was granted Public Open Space as per the Local Plan at the time (hectares per dwelling). 16 years later, the developer wants to build more residential properties on the POS. The POS equates to approximately the correct amount of hectares per dwelling, so there is no ‘additional land’ to build upon. The building work would take-over the POS. The lease has restrictive covenants (as below). The covenant seems to be in conflict with the rights to POS. What does the covenant mean, and can/should it be challenged?
Not to make any objections claims or representations whatsoever in relation to:
any application for planning permission from time to time made by the Transferors or their successors in title in respect of the Retained Land or any part of the Retained Land or on any appeal or public enquiry arising from any such application and… to the business of the Transferors presently carried out by the Transferors on the Retained Land or any part of the retained land for any purpose for which planning permission is obtained.
Hi,
Thanks for the great article.
Does it make any difference if the seller who put the restrictive covenant in place is Duchy of Cornwall? The duchy of Cornwall put it on 30+ years ago and is not the current land owner.
Thanks,
Emma
There are restrictive covenants on our property and on the other properties where we live.We live in a small residential cul de sac,we bought the house over 13 years ago,The neighbours next door decided to keep chickens and cockerels.The restricted covenants say no poultry to be kept but we have fought with the council and they say it is okay.We end up With rats and in the summer it’s aweful with flies and the smell.We have told her but she insists she is doing nothing wrong.My husband has just gone through chaemotherapy and radiotherapy and my health is not good.We are both in our 70s The lockdown now is marking it terrible because we only have our garden to go in .The council say the restrictive covenants don’t matter anymore.Why bother passing them on in the deeds if that is the case.
I am also a therapist who wants to work from home, where the covenant of a house we want to buy states that no business use allowed. This was set in 1984, when the property was first built.
Hello, Our house has a covenant attached to the Deeds that was set by the Crown Estate at some point in the past. It states that no changes should be made to the front of the house. Bearing in mind that the Crown Estate does not own any property or land within 10 miles, and the house in now surrounded bu far more modern houses, would this type of covenant be enforceable? we don’t live within any type of restricted/protected area, i just assume that the property or land was owned by the Crown at some point in the past 150 years!
I bought a barn conversion to develop and the neighbour who sold it us had a covenant on the TP1 which states “Not to build the property other than in accordance with planning permission ref P***£%^* or as subsequently amended approved and agreed in writing by the transferor” Would this be classed as a restrictive or positive covenant.
On reading Colin Fenny’s very in depth report on challenging covenants i’m not sure if its even enforceable or legal.