5 things you need to know about restrictive covenants

If you’re considering developing land with a restrictive covenant, or you’re looking to enforce a restrictive covenant on a developer, there are several issues you may encounter. Let’s find out more.

A restrictive covenant is a legally binding condition that tells the homeowner what they can or cannot do with their property or the land it sits on. 

Examples of circumstances covered by restrictive covenants include:

• Altering the property – such as extensions or converting a larger house into smaller flats

• Construction - Building new structures on the land

• Function – such as turning a home into a place of business premises

Recently, the Upper Tribunal (Lands Chamber) ruled that a group of individuals objecting to an application to modify a restrictive covenant were not entitled to oppose it as they could not demonstrate they had the right to benefit from it. If you’re dealing with restrictive covenants, whichever side of the fence you’re on, it’s good to know all the facts.

Here are five pieces of advice for managing restrictive covenants.

1 - Be clear

If you want to create a restrictive covenant, make sure the language you use in it is clear and unambiguous so there are no misunderstandings.

The covenant that binds the land must benefit the land by prohibiting someone’s actions over what they can or can’t do to it. It can’t be for personal benefit. 

You should also be clear about which land is the beneficiary of the restrictive covenant and which land bears the burden. Ensure the covenant is registered against both the beneficiary and the burdened. Any mistakes could see your covenant made unenforceable by the Tribunal.

2 - Pay attention to restrictive covenants

If you’re considering developing land and you discover a restrictive covenant, don’t ignore it. They’re there for a reason, and the parties that stand to benefit from them will frequently have a case to enforce them.

Even if you discover the restrictive covenant and think it won’t affect your plans, it’s always worth double-checking with a property lawyer.

3 - Read it carefully

Just because you encounter a restrictive covenant, it doesn’t mean it’s game over from your plans. Remember, restrictive covenants often expire, or the land named in it becomes common land, thereby voiding the covenant. 

Again, your lawyer will be able to examine the covenant and give you the best advice.

4 - Take precautions

If it appears that there’s an enforceable restrictive covenant on your land that your development plans would breach, you can purchase an insurance policy to cover any loss from a claim by the covenant’s beneficiary.

5 - Attempt to modify or extinguish the covenant

You can apply to the Lands Chamber of the Upper Tribunal to alter or remove the restrictive covenant. If you can satisfy the Tribunal that:

• The covenant is now obsolete due to changes to the land since its conception

• The covenant, as it stands, does not allow reasonable use of the land

• The covenant’s beneficiaries agree with the modification (or elimination)

• Altering the covenant would not negatively affect the beneficiaries

If there is a good chance that you can demonstrate one or more of these criteria, your property lawyer will be able to help you put a case together.

Find out more from Couchman Hanson

If you’re looking to enforce a restrictive covenant on land that affects your way of life, or you’re a developer navigating restrictive covenants as part of your planning process, it can be quite daunting. It’s a complex part of property law dealing with decisions that may have been made decades or even centuries ago.

This is where it pays to have a great property lawyer in your corner. They’ll be able to understand the covenants that are in place and explain them to you in plain English. They’ll lay out your options and help you make the best decision.  

At Couchman Hanson, our solicitors genuinely care about getting the best outcome for you. We’re highly professional, with ‘city’ level talent and experience, but also friendly and welcoming. Everything we do fits with our values of integrity, honesty and authenticity.

Call 01428 774756 or visit couchmanhanson.co.uk