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The most common grounds for the Lands Tribunal agreeing to discharge or modify the restriction are that the restriction is obsolete due to the change in the nature of the neighbourhood since the time it was originally imposed, or that the restriction prevents the reasonable use of the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.
Hi,
I am currently in a position where I am looking to purchase some land to the side of my parents property. My parents bought the land 11 years ago and on the deeds it stated (through a restrictive covenant) that only one dwelling was to be built on the land. The initial land owner does not live near the property but does have an agricultural building behind the plot. I have contacted his property agent about getting the covenant removed and they have replied with a figure that seems very high. They have valued the covenant in the following way; The land has been given a value minus the reduction in my parents property and this has been divided by three to give a cost to remove the covenant. Is this correct?
The building control line runs through the end of the land and I have spoken to local planners who believe there should be no problem in gaining planning permission.
Hi.
We have bought land from her parents that now has approved plans for a single dwelling. The land was originally acquired by them around 20 years ago from the local council, a neighbour and the nearby church. They built their house on this amalgamation of plots, and the only portion of the build that encroaches on the council acquired land is the adjoining garage.
It is this land that we have purchased from them and plan to build on, but the council land was transferred with a covenant that states ‘Not to use or permit to be used any part of the property otherwise than as a single private dwelling house for owner occupation save that such use shall be construed so as to exclude the use of the property for occupation under a rental purchase agreement.’
Is the garage already fulfilling the ‘single private dwelling’ restriction and our building be in contravention of it, or is no action needed?
I presume the original ‘benefit’ of the covenant in this case is the council preventing the building of a small clutch of properties for profit.
We have instructed our solicitor (who originally wanted us to take out an expensive indemnity) to contact the council asset management department to see what the situation is.
What are the likely options in this case. Will this be expensive?
Claire,
Thank you for your query.
It does not appear to me that either of the provisions you have quoted would prevent you from building an extension to your house, although it will depend on the type of extension you are considering.
That is not to say that you would not be prevented by some other clause in your Deeds, which I have not seen, or by local planning policy (if applicable), but from the information you have provided I do not see any problems.
The first provision is actually a right that was reserved by the person selling the land to be able to develop neightbouring or adjoining property regardless of the effect on light and air to your property.
The second provision prohibits you from erecting any building on the land other than a residential house. It does not prevent you from building an extension to that house but it may restrict the building of a separate extension that does not form part of, or is not connected to, the house, depending on how the clause is interpreted if the development is challenged.
Your solicitor should have run through the general impact and effect of any restrictive covenants in the deeds with you at the time of purchase but would not have been required to give specific advice on their application to particular circumstances unless asked to do so.
I hope this helps. Please do not hesitate to ocntact me on the office number (01772)258321 if you require any further advice on this matter.
Colin
hi
We are hoping to have an extension later in the year but having looked at the deeds to see who was responsable for a fence that had fell down,we have noticed there is a Restrictive Covenant and are unsure whether we are able to have the extension as the wording is hard to understand.
One part says that “EXCEPT AND RESERVING unto the company and its successors in Title the right to use all or any part of the company’s adjoining or neighbouring poperty for building or other purposes whether or not such use shall obstruct or diminish the access of light and air now or at any time hereafter enjoyed by the purchasers or their successors in Title owners or occupiers for the time being of any part of the property hereby conveyed to or for any building or other erection now or hereafter to be erected on.
Then there is a 2nd schedule that states Not to erect any building in substitution of any house thereby conveyed except private dwellinghouse and the cost of any such dwellinghouse (together with the outbuildings thereto belonging) reckoned at the lowest current price in labour and materials should be not less than £1,200.
Can you please advise us .
Also should we have been made aware this when purchasing the property?
Thanks.
Nick,
Unfortunately it is not possible to provide definitive advice on the extent to which your neighbour has the right to enforce these covenants against you, without having sight of the document(s) that imposed these restrictions on you and knowing more about the circumstances or context in which they were created.
However, the main point to note is that a covenant is only enforceable by someone who is entitled to the benefit of that covenant. This will either be as a personal right arising under the agreement creating the covenants, or because the convenant creates a legally enforceable right for the benefit of property which they own.
Similarly, in order to enforce a right to light, a property owner will need to demonstrate that a right to light has arisen in respect of their property and that the act of another will result in a reduction of the amount of light required for the reasonable enjoyment of their property.
Claims for breach of a right to light are not straightforward and will involve the instruction of a specialist surveyor to determine whether a breach has occurred.
I note that you make reference to a solicitor’s letter. It would be interesting to see the basis upon which your neighbour asserts their claim to the benefit of the covenants and to a right to light, together with any evidence in support of such claims.
In the meantime, it seems to me that it would be in your interests to try find an amicable compromise with your neighbour before any works are commenced so as to avoid becoming embroiled in expensive and time consuming litigation, especially as you will still need to live next door to each other whatever happens.
However if this is not possible, I would be more than happy to provide a more substantive advice on the risks of proceeding with the development in the face of your neighbour’s objections. In which case, please contact me on the office number 01772 258321.
Could you please advise on an dispute I am having with my neighbour. We have approved plans to extend our house and our neighbour is threatening to seek an injunction if we start works. The elements of the covenant that out neighbours are saying our development will breach is:
1. you must not “do on the said premises anything that may cause annoyance or be a nuisance to the vendor or the Trustees or to the neighbourhood” (coveneyance dated August 1925)
2. “Not to build or erect or permit to be built or erected upon the property any new buildings or structures or to make any additions or alterations (visible from the outside) to the existing dwelling house and outbuilding except in accordance with plans elevations and specifications previously approved by the Society’s surveyors in relation thereto.” Nor “to do cause or suffer upon the property anything that may be or become a nuisance or annoyance or which may cause damage to the Society or other tenants or the Occupiers of the neighbouring land and premises of the Society.” (coveneyance dated August 1979)
Also the neighbour’s solicitors are saying that the development will interfere with their right of light. To further complicate matters the organisation that the covenant is now vested with originally approved the development and have subsequently withdrawn their approval formally but state this doesn’t impact our ability to start the job. On further discussion the organisation that the covenant is now vested with don’t want anything to do with the dispute.
In summary we are worried about starting the development in case our client successfully manages to seek an injunction and we then incur large legal costs. Also we are concerned that even if we completed the development and the neighbours didn’t successfully obtain an injunction they may subsequently pursue damages against as they feel the development will devalue their property
What would your advice be in this situation?
Fran,
We would need to see the wording of the covenant and the circumstances in which it was created in order to advise whether it is enforceable against your friend.
If your friend is able to send in the document containing the convenant to our enquiries email address I would be happy to advise further on the legal position and what options may be available.
Chris,
The fact that positive action may be required to remedy the breach of covenant does not of itself make the covenant unenforceable.
The issue is whether the covenant is and remains enforceable as a matter of law against your neighbour.
This will depend on a number of factors, including the age of the convenants, the circumstances in which they were created and whether they satisfy the legal requirements on enforceability.
Assuming these covenants are enforceable and the neigbour is in breach, you may be able to take legal action to require the trees to be removed or reduced or claim damages for that breach.
Please contact me on the office number 01772 258321 if you require any further advice on the enforceability of the covenants or the legal options available to you.
Kate,
It would be interesting to know on what basis the Council is seeking to stop you from trading.
Restrictive convenants are a form of private planning control which operates between one landowner and another.
Unless the Council owns the land which has the benefit of the convenant, it will not be able to enforce the covenant against you.
More likely the Council is relying on its statutory planning powers to stop you from trading. If the Council considers you to be in breach of the local planning controls it can take enforcement action against you requiring you either to cease or remedy the unlawful activity by serving an enforcement notice on you.
In those circumstances you do have the right to appeal against any enforcement notice, but if the appeal is not successful you would be commiting a criminal offence by not complying with the notice which could result in a fine.
Hope this helps. If you require and further assistance or advice please let me know.
Sirs
Could you please advise me on a matter recently arose and leading to a judgement against me (which I`m having set aside), the case revolves around a property management company who insist on each householder paying up to £200.00p.a. for services they dont provide,(i have refused to pay, hence the judgement), In order to give you as clear picture as possible i,ll relay the wording of the covenent,
The transfer of land in this title dated june 1984 between (1) birmingham city district council, (2) new midlands housing ass ltd (3) brookfield estate management company ltd and (4) Valerie Morris, contains restrictive covenents, ( Ms Valerie Morris was the previous owner of the house and signed a share thing which i hav,nt, she has no connection to the property or myself)
(2) the land is subject to such rights of way, water,light,drainage, air support and other easments or quasi easements as are enjoyed by adjoining properties.
(3) (12,10,1999) registerd charge dated 24/10/1999 to secure ther moneys including the further advances therin mentioned,
(4) (04 01. 2008. proprietor: Lloyds-TSB bank plc etc etc
As you can see the covenet quiet rightly prevents other householders from denying adjoing properties light are etc etc which is fair and for the benefit of the community, however i can not see where these covenants can be used by a service company to extract monies from householders for the services they do not carry out or those they do justify the costs required,
can you please advise soonest thank you
Dave houlden