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The most common grounds for the Lands Tribunal agreeing to discharge or modify the restriction are that the restriction is obsolete due to the change in the nature of the neighbourhood since the time it was originally imposed, or that the restriction prevents the reasonable use of the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 Julian
Many thanks for your comment.
Assuming the covenant is still enforceable, in order to amend it, you may have two options. Firstly, you can negotiate with the beneficiary of the covenant to either completely release or amend the existing restriction to reflect the five houses. Such an agreement would be made in the form of a deed to be signed by both you and the beneficiary.
Alternatively, if you cannot find the beneficiary, or agree with them, you can make an application to the Upper Tribunal (Lands Chamber) who will then make a decision on the modification of the covenant. However, by virtue of section 84 of the Law of Property Act 1925, in order to make such an application, you will need to show that either of the four situations exist – either the covenant is obsolete, it impedes some reasonable use of the land, the beneficiaries expressly or impliedly agree or that no injury will be caused by the removal or amendment.
If you would like a member of our Property Litigation team to take a look at the covenant to determine whether it is enforceable and to advise on the best option for you, please email me at kerry.southworth@harrison-drury.com or alternatively telephone me on 01772 258 321 and I will arrange a member of our team to contact you.
Kind regards,
Kerry Southworth.
Dear Ms Mason,
The first thing to check is whether or not the covenant is enforceable. If the land with the benefit of the covenant has changed hands since the covenant was originally made the covenant may be unenforceable if it does not meet certain conditions. The wording of the covenant itself will determine whether or not it remains enforceable and I cannot advise you further without carrying out further investigations.
Alternatively you could look into obtaining indemnity insurance to cover any liabilities that may arise from breaching the covenant. However, please note that it is a common requirement of most indemnity insurance providers that 12 months must have passed between breaching the covenant and the inception date of the policy. If the potential buyers wish to keep pigs on the land it may therefore be worthwhile carrying out further investigations into the enforceability of the covenant at this stage.
If the covenant is enforceable and you can find who now has the benefit of it you could try to negotiate its release or make an application to the Lands Tribunal to have the covenant modified or discharged.
If we can be of further assistance please do not hesitate to get in touch with our Commercial Property team on 01772 258321.
Kind regards,
Laura
Hello, I bought a plot of land with a covenant on where I had to ask for permission to build on. I did not ask for permission however the previous owner of the land who had the covenant has since sold the land and the new owner is now saying I should of asked for his permission (the new land owner). Could you please advise me on what I should do.
Kind regarsd
I have a restrictive covenant that prevents me from objecting or inciting other to an object for planning permission for 1 dwelling on land next to me. My property is a smaller piece of a larger plot the vendor retained the remainder. It reads as follows:
Not to make or to encourage or incite others to make any objection to an application for Planning Permission for no more than one residential dwelling on the land coloured blue on the plan with garage ancillary outbuildings, gardens and car parking
I wonder how enforceable this covenant actually is? By any reasonable test, I should be allowed to object if I feel the dwelling isn’t in keeping with the surroundings or something similar.
When I purchased my current home I was advised the property contained a covenant permitting the construction of one house only. This covenent dated 1910. As I wanted to ensure that the house I was purchasing Was not in breach of a broader covenant I requested my Solicitor to obtain a copy. When I received the copy it was clear from the attached plan that the covenant related to a site covering five individual plots.
The house and garden I purchased was built around the 1920’s and covers the five plots,. Presumably the purchaser of the five plots subsequently decided to build a single house.
The wording on the land registry reflects the original 1910 deed pertaining to each plot i.e. for single house. However the site covers the five plots. Is it possible to correct the land registry to reflect the restriction to five houses? If so how would one proceed?
Hi, I am selling a farm building with 37 acres and there is a restrictive covenant that says the owner can not have dairy cattle or pigs. The covenant was put in place by the previous owner who has now passed away. I have an interested buyer but they have 30-40 pigs and I wondered if the covenant could be lifted now or how I go about doing it.
I look forward to your response..
Emma Mason
Dear Graeme
Thank you for your comment.
In relation to the first restrictive covenant noted at point 1 above, it is important to be aware that just because there are no specific details of the covenant provided this does not mean it automatically becomes obsolete. Without having the opportunity to review the title to the land I am unable to offer any firm advice as to the status of the covenant, however, it may be the case that there is indemnity insurance in place to manage the risk of this covenant being enforced.
In respect of the second covenant detailed it should be noted that the nature of restrictive covenants means that as well as being enforceable between the original contracting parties such covenants may also be enforceable by any successors in title. Therefore, the death of the named individuals does not render the covenant obsolete. The current land owners may be able to benefit from the restrictive covenant by seeking to prevent development.
As enforceability of the covenants does potentially remain a live issue, you may wish to look at the securing the removal of the restriction. There are a number of different ways that this could be achieved, but it is difficult to comment on the likelihood of success until I have reviewed the title in full:-
1. You could consider negotiating with the neighbouring land owners to secure the release from the obligations under the covenant;
2. You could look to obtain restrictive covenant indemnity insurance to protect against the risk of the covenants being enforced; or
3. You could consider submitting an application to the Lands Tribunal to have the covenant modified or discharged.
To discuss these options in further detail or if you have if you have any other questions or queries, please do not hesitate to contact me on 01772 395185 or Rebecca.Hayles@harrison-drury.com.
Kind Regards
Beccy Hayles
Dear Chris
Our neighbours have two trees growing within 1 meter of our house and in particular in from of our main window. These are self seeded saplings that have been allowed to grow. The pervious owner tried to remove the sapling but was told not to by the other flat owners. He has now moved and the current owner refuses to remove the tree but has agree to reduce the tree by 20%. She has applied for planning permission and this has been granted saying there is no TPO.
Under a covenant in her deeds it states quite clearly the following”whatsoever which can shall or maybe or grow to the annoyance damage or inconvenience of the neighbourhood or Inhabitants thereof” we have asked repeatedly to have the tree removed as it is causing damage to the stone wall but her response is ” it will take another 5 years and we’ll be gone by then” any help appreciated
Regards Stuart.
I live in a small development of two blocks of two story apartments, 30 apartments in total 5 entrances, built in 1974.
There is a covenant on the site between the builder and owners regarding internal alterations and external building. We have applied to our Management Company for a licence to erect a balcony on our second floor property but have just been told ” the covenant says NO” . Do they have to give defined reasons which we can challenge ? We live on the edge of the development and do not overlook any of the other apartments, the balcony will only be directly visable by 3 other apartments. There is one first floor balcony on the site which was installed in the original build.
Regards. Pete
Dear Dave
Thank you for your comment. It is likely that upon purchase of your property, the builder included a restrictive covenant to prevent you from building any structures on your land, which is a common feature for new build properties.
There are various ways that you can obtain protection from you builder enforcing the covenant. The first is to agree with the builder for the express release or variation of the covenant via a Deed of Release or alternatively in the situation of disagreement, you may apply to the Upper Lands Tribunal to apply for the covenant to be removed. However, the latter will invariably cost you in terms of application fees and time, though we can advise on the likelihood of success.
In addition, if there is a subsisting breach it may be possible to obtain indemnity insurance which will cover you for any claims made by the builder for breaching the covenant. This is a quicker and cheaper option that the court action, though the most favourable option would be to agree an express release.
However, in order for us to provide you with clear advice and your options with regards to the covenant, I would be grateful if you could send me the covenant and any correspondence to determine the terms of the restriction. My contact details are kerry.southworth@harrison-drury.com or alternatively 01772 258 321.
Kind Regards
Kerry Southworth