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The most common grounds for the Lands Tribunal agreeing to discharge or modify the restriction are that the restriction is obsolete due to the change in the nature of the neighbourhood since the time it was originally imposed, or that the restriction prevents the reasonable use of the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.
Dear Mark
Many thanks for your comment. Before I am able to give you concrete advice, I will need to see the covenant itself, and the deed of release.
Essentially, the benefit of a restrictive covenant is annexed to the land, and in most cases would remain enforceable provided it has not been extinguished or released.
Therefore it is important that we see the covenant and the deed before making any definitive statements. IF you would like to send us your documents, or would like further information, please do not hesitate to contact me on 01772 258 321 or alternatively at kerry.southworth@harrison-drury.com.
Kind Regards,
Kerry Southworth
We are on the process of buying a house and would wish to construct a conservatory within permitted development regulations when the transaction gets completed. However, in the deed it states, The clause 2 – First Schedule of the Transfer advises that you must obtain written
consent from the original Seller prior to carrying out any structural alterations or additions to the Property,
such as building a conservatory, or creating a room in the attic or garage in addition to seeking the
necessary Planning Permissions and Building Regulation Consents.
What would be the best course of action for us to do in this instance. The original seller was a developer (Bellway homes i Think) which sold the property more than 10 years ago.
can You advise me please, in the deeds to my property in wales we have a covenant stating to maintain a cattle grid fence, builders have applied to build 119 houses in the field that was originally green belt,can the covenant stop them?
We wish to construct a fence and gates to the front of our house. We will have to construct a fence that will border along side part of our driveway and a neighbours lawn (approx 5metres) we are set back from the road.
There is a restrictive convenant stating “That no further building or boundary wall or fence or boat or caravan will be constructed or allowed to remain (as the case may be)
between any dwelling or garage constructed on the property transferred
and the estate roads or footpaths”
Would this convenant impact on our being able to do this?
Kindest
Sofia
A 27 foot wide section of my 100 foot wide garden has a restrictive covenant from 1957, as follows:
“For the benefit and protection of Field Cottage aforesaid or any part or parts thereof and so as to bind the property hereby conveyed the Purchaser hereby covenants with the Vendor in manner following that is to say:-
“Not to erect on the plot of land hereby conveyed anything other than a private motor garage or summer house for use in connection with the adjoining premises known as Oak Cottage as a private residence.”
(Oak Cottage is my residence).
Field Cottage has been extended, made into two dwellings, and a third dwelling on part of Field Cottage’s land has also been sold off.
Originally in 1957 Field Cottage was a single dwelling owning it’s garden.
Now Field Cottage and its garden are 3 separate title deeds – none of which mention the covenant at Land Registry.
Questions:
1. Does the covenant now benefit 3 dwellings? Or just Field Cottage, the dwelling mentioned in the covenant? Or none?
2. Given that Field Cottage has developed the cottage and garden from 1957 into 3 independent dwellings, changing the character and density of the location, does this development invalidate the restrictive covenant?
Many thanks,
James
Dear Margaret
Many thanks for your query.
Unfortunately I would be unable to advise upon the validity / enforceability of the covenant without reviewing your title deeds in full.
Please feel free to contact me on 01772 429 207 or jack.stephenson@harrison-drury.com with details of your land and I would be more than happy to discuss this further.
Kind Regards
Jack Stephenson
I have cottage in which there is convenant
It gives next door cottage rights to pass over and pass off our pathway to side off our cottage at all times and purposes to well and to help costs maintain well .
The well does not exist anymore ,and cottages are rented out .its has only ever been used by foot to make entry into there cottage ,new owners of next door want use it by vehicle and take out my garden and fence to park by side of there cottage can they do this
Good afternoon,
Would you be able to advise if there is any hope building a house for ourselves on our field purchased in 1985 which has the following covenant “….not any time to erect or permit to be erected on any part thereof any buildings whatsoever other than agricultural buildings of a non-residential type and this covenant shall be entered into pursant to Section 8 of the … County Council Act 1967.”
We are considering purchasing a house which forms part of a building that was originally a single dwelling. It is now one of two separate dwellings with a flying freehold where the dwellings overlap in places. The two properties are called “The Monastery” and “The Manor”. The Monastery holds a restrictive covenant over The Manor (the part we are considering purchasing) whereby written approval is required for any architectural modifications to the exterior of the Manor. Additionally the covenant provides that nothing may be done on the land which will or may become a nuisance or annoyance to the owners of the Monastery.
Given that both properties are grade II listed the first part appears to be partly redundant and the second part may be seen to impair the right to quiet enjoyment of the property. Do you think these are grounds for applying for despatch of the covenant?
Regards,
Matthew
By Mark Robertson on February 2nd, 2016
My parents purchased my house on the 26/09/1984 and I subsequently bought it from them in 1992. Neighbouring woodland with engineering workshops were purchased on the 09/11/1983. Their is a restrictive covenant to use the woodland for farming or agricultural purposes only. The then owner ( now deceased) obtained a deed of release from the developer on the 17/08/1984 to develop a single dwelling house . However he did not obtain a deed of release from another property owner nearby who purchased his property in March 1984. With this in mind am I correct in thinking that ,as the restrictive covenant had not been fully extinguished before my parents purchased their property on the 26/09/1984, then it is still enforceable by myself as I still have the benefit of the covenant ?, Best regards, Angela.