Freehold owners of land may come to quite the shock when they try to carry out routine works on their property (such as building a detached dwelling or developing their garden) and their builder or architect consulted on the process reveals there are restrictive covenants on their title which would prevent them from doing so. While these restrictions may have once served a clear and apparent purpose historically they might no longer be prudent or relevant today. In this article we aim to examine the purpose of these types of restrictive covenants, some options you can pursue to have them modified and what you may consider doing with help from our commercial dispute resolution solicitors or property dispute advisors.
Restrictive Covenants – What are They and Why is my Land Subject to Them?
Covenants are agreements between parties which when referring to land restrict what users of land can and cannot do. Historically they were a solemn promise between parties. The difficulty with this is when land began to change owners more regularly these promises would be disputed. The solution for this was to contain restrictive covenants within property deeds so that it would bind the land. The agreement would always be to one party’s benefit and one parties inconvenience or burden and as they effected land would remain in existence long past the lifetimes of those who originally agreed them.
Common Types of Restrictive Covenants
- Restrictions on development
- Limiting land to one property of residential purpose;
- Dictating the type of business which can be run from land;
- Preventing activities or potential sources of nuisances;
- Restricting certain types of alterations;
Due to restrictive covenants passing from owner to owner (and even owner to sub-owner) when a larger parcel of land is split-up these continue to apply to land – even while still being freehold! This can cause problem for owners who accidentally find themselves in breach of restrictive covenants for which neighbouring owners can force compliance sometimes with extreme consequence such as knocking down a recently built property. The party in breach could also face a large legal bill for action taken to force this compliance.
What Can be Done about Overly Burdensome Restrictive Covenants?
While situations like those referred to above may seem like you are held at the mercy of neighbouring land owners, the situation is not quite as dire. Prospective purchasers of land may find it helpful to approach the party with the benefit of the covenant to see if it can be agreed to be removed or modified. This may take some negotiation but is usually the most straight forward way at solving these types of problems. Some situations may make it difficult to find out who exactly has the benefit of a covenant – careful investigation should be employed to track the development of the land from when the covenant was entered into.
An alterative route, if you either cannot trace the owner of the benefit or if you have and they refuse, you can apply to the First-Tier Tribunal (Property Chamber) under Section 84 of the Law of Property Act 1925 to modify or discharge most restrictive covenants affecting land. The tribunal has the discretion to determine:
- If a restriction ‘ought to be deemed to be obsolete’; or
- If the ‘…continued existence thereof would impede the user of the land for public or private purposes, or, as the case may be, would unless modified so impede such user’ and
- The owner of the benefitting land consents to the discharge or change; and
- If there will be damage to the benefitting land due to the loss or change of the covenant.
How to Proceed
It is always recommended that in situations which involve old promises made which are still in force today that you carefully explore your options before deciding to potentially proceed with costly work to your land. You could choose to proceed irrespective of the covenant but doing so would have its own risks which would be best to understand. Restrictions impact the reasonable use of land and can impact your quiet enjoyment – for these reasons knowing about any which may impact your current property or your prospective purchase will help you make informed decisions.
Whether you are contemplating breaching a covenant, already in breach or wishing to contest the continuation of a covenant, guidance on the intricacies of these long-established legal devices is available from our specialist property solicitors who have experience in advising on a wide range of restrictive covenants. They will aim to fully investigate your queries, advise with specific reference to your situation and offer advice as to potential financial implications to action to seek helping you achieve the best possible outcome achievable for your given state of affairs.
