Guide to Restrictive Covenants.

Restrictive covenants can affect what you may do with a property. They can apply to residential, commercial or development land and may restrict building works, alterations, business use, parking, access, noise, appearance or how the property is occupied.

A restrictive covenant can affect the value, use and marketability of a property. It is important to understand any restrictions before buying, selling, extending, developing or changing the use of land or buildings.

What Is a Restrictive Covenant?

A restrictive covenant is a legal obligation that limits how land or property can be used. It is usually found in a title deed, transfer, conveyance or lease. This page deals with restrictive covenants affecting property, although covenants can also arise in other areas of law, including employment.

If a restrictive covenant is valid and enforceable, a person with the benefit of the covenant may take legal action if it is breached. This could include applying for an injunction, seeking damages or requiring works to be removed or stopped.

Common Examples of Restrictive Covenants

Restrictive covenants are often used to protect neighbouring land, preserve the character of an estate or control how a development is used. For example, a covenant may prevent a property owner from building above a certain height, adding another floor, erecting a boundary wall, or running a business from the property, or from building within a certain distance of a boundary.

Some covenants may restrict noise, nuisance or commercial activity. Others may prevent subdivision, extensions, parking of commercial vehicles or changes that affect the appearance of a development.

How Do I Know If a Property Has a Restrictive Covenant?

Your conveyancing solicitor should check the title documents when you buy a property and should tell you about any restrictive covenants that affect it. However, buyers should always ask specific questions if they are planning alterations, extensions, business use or future development.

Restrictive covenants may be referred to in the Land Registry title, in old conveyancing or transfer documents, or in lease documents. A buyer cannot usually avoid the effect of a covenant simply by saying they did not know about it, especially where it was recorded in the title documents.

What Happens If a Restrictive Covenant Is Breached?

If you breach a restrictive covenant, the person or landowner entitled to enforce it may object. They may ask you to stop the activity, remove works, pay compensation or enter into a formal agreement. In serious cases, court proceedings may follow.

Breaches often come to light when a property is sold, refinanced, developed or when a neighbour complains. Resolving a breach can be expensive, particularly if building work has already been carried out and an injunction is sought.

Not every covenant is enforceable. A solicitor may need to consider the wording of the covenant. This land benefits from it, whether the covenant still has practical value, whether it has been breached before, whether consent was needed and whether enforcement would be reasonable.

Planning Permission and Restrictive Covenants

Planning permission does not remove a restrictive covenant. You may have planning permission for an extension or development but still be prevented from carrying out the work if a restrictive covenant applies.

Before starting work, it is important to check both the planning position and the property title. These are separate legal issues, and approval from the local authority does not necessarily override private property rights.

Can a Restrictive Covenant Be Removed or Changed?

In some cases, a restrictive covenant can be released, varied, insured against, modified or discharged. The right approach will depend on the covenant, who benefits from it, the proposed use of the property and whether anyone is likely to object.

Sometimes it may be possible to obtain consent from the person or landowner who benefits from the covenant. In other cases, indemnity insurance may be considered, although this is not always suitable, particularly if contact has already been made with the person who may enforce the covenant.

Application to the Upper Tribunal

If agreement cannot be reached, it may be possible to apply to the Upper Tribunal (Lands Chamber) to have a restrictive covenant modified or discharged under section 84 of the Law of Property Act 1925.

The Tribunal may consider grounds such as whether the covenant is obsolete, whether it impedes a reasonable use of the land, whether those with the benefit of the covenant have agreed, or whether changing or removing the covenant would cause no injury to those entitled to benefit from it.

Applications can be complex and may involve evidence, valuation issues, objections and compensation. Legal advice should usually be obtained before making an application or contacting neighbouring owners.

Getting Legal Advice

If you are buying a property, planning building works, dealing with a title issue or facing a dispute about a restrictive covenant, it is sensible to speak to a solicitor before taking action. Early advice can help avoid breaches, delays, enforcement actions, and unnecessary costs.

Find a Property Solicitor

To find a solicitor who may be able to help with restrictive covenants, conveyancing, property disputes or development issues, use the search facility, select Property Law or Conveyancing and enter your location.