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Restrictive Covenant Disputes

A restrictive covenant in relation to residential property is a binding condition written into a property’s deeds or contract by a seller to determine what a buyer can or cannot do with their house or land under particular circumstances.

Mark Oakley

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moakley@judge-priestley.co.uk

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Typically, restrictive covenants can prevent owners from making alterations to a property (such as building an extension), prevent buildings from being erected on a section of land or prevent trades or businesses from operating on the land for example.

It is important to note that:

The agreement which created the obligations and rights can be enforced by and against subsequent landowners, even if they were not party to the original agreement. Covenants are attached to the land not the land owners.
The Courts can enforce a restrictive covenant through an injunction prohibiting the landowner from taking an action which breaches the covenant. You can also be liable for damages if you breach a covenant.
If you have the benefit of a restrictive covenant, you can initiate these actions against the other party.
If you are unsure about the effect and enforceability of a restrictive covenant or whether it exists or applies to you, you can apply to the Courts to determine these matters.

Modifying a covenant / declaring a covenant invalid

It is possible to apply to court to be released from the burdens of a historical restrictive covenant, but the following should be born in mind.

You will be liable to pay the costs of Lands Tribunal proceedings because you are releasing yourself from an obligation you are otherwise bound by.
There are several reasons why the Lands Tribunal will declare a covenant invalid. These are that the covenant is obsolete because the character of the property has changed (or some other material reason), or the continued existence of the covenant would restrict the reasonable use of the land, or the person entitled to the benefit of the covenant agrees to its discharge, or discharging the covenant will not affect the person entitled to the benefit.
You may be liable to compensate a person for potential losses from the modification or discharge of the covenant.
The Lands Tribunal will publish various notices to alert people who may be entitled to the benefit of the covenant, which will allow objectors to come forward.

Opposing an application to modify a covenant

If you wish to oppose an application to have a restrictive covenant modified or discharged, you must give a notice of objection to the Registrar within 28 days’ notice of the application.

A full understanding of the effect of restrictive covenants, especially if you carry the burden of one, is essential to ensure you will not be liable for damages or be subject to an injunction. At Judge & Priestley, we can guide you through the process should a dispute arise.

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