What Are Restrictive Covenants?

Restrictive covenants are sometimes imposed by a seller on the land belonging to a property which is being sold to prevent the buyer from using the land in such a way that the seller feels could be damaging to the land which the seller has retained.

Common examples include an agreement not to erect any buildings or structures on the land or to use the land to run a business without the express permission of the developer. Restrictive covenants can actually cover a broad range of issues but one of the most frequently broken is in making alterations to an existing property without obtaining consent from the appropriate third party which is often the original builder.

How Do I Know If I’m Affected By Restrictive Covenants?

A lot of the time, people buy new property and their conveyance solicitor has not bothered to make them aware that restrictive covenants affect the property. This is why it pays to thoroughly check out the deeds to the property as any covenants will be contained within this document. Ignorance is no excuse where the law is concerned. By signing the title deeds, which you will have been required to do, it basically means that you have read, understood and signed an agreement to all of the terms within it. Therefore, it could well be that you could, for example, be required to tear down a house extension which you have had built if the person with the benefit of the covenant enforces it against you. One of the key things to remember here is that planning permission from your local authority or building regulation approval is completely separate from covenant consent and must be applied for separately.

Another example might be to do with boundaries where a neighbour wants to erect a fence of a certain height between his house and his next door neighbour’s yet the restrictive covenant does not permit this. This is a typical example of the kind of dispute that can arise in neighbourhoods where, perhaps, the houses are rented and contracts and covenants dictate what you can and can’t do in relation to things like home and garden improvements.

Breaching A Restrictive Covenant

If you think you have breached a restrictive covenant, you need to employ the services of a professional conveyance solicitor. The enforcing of covenants is an extremely complex matter and a good conveyance solicitor may spot that the restrictive covenants which appear within the deeds or legal title of a property have been incorrectly drawn up or may discover that the correct procedures have not been followed. In essence, there are sometimes legal ways in which a conveyance solicitor can prove that the covenant is not enforceable.

Sometimes a way around the problem is to take out indemnity insurance although the insurance company may impose specific requirements which must be met such as no dispute being currently in effect or the breach has continued for several years. Other solutions can include contacting the original developer who imposed the covenant to see if they are willing to grant what’s termed ‘retrospective consent’. However, in this case, you’ll almost certainly have to pay a fee with no guarantee that they will agree or even where they will agree to lift the covenant, they might also seek compensation from you from breaching the covenant in the first instance.

Often it’s only when problems or disputes arise between neighbours that the whole issue of restrictive covenants springs to light. Whether it’s boundaries that are the issue or other plans a person might have for the land, the best way to get the matter resolved is to speak to a conveyance solicitor who will be able to help resolve the matter.

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