Restrictive covenants, sometimes known as negative covenants, may affect any property. A restrictive covenant is effectively a promise made between a buyer and a seller of land and that promise may have to be honoured by subsequent owners.

Covenants that often cause problems include those which:

• dictate that the owner cannot build an extension;
• impose restrictions on how high a building or extension can be;
• restrict the number of buildings a landowner can put on the plot of land;
• restrict the use of the premises.

Even if a landowner has planning permission he/she still has to be mindful of any covenants in their deeds that may impede their plans for their property.

It is not advisable to breach a covenant without first taking legal advice. If a landowner with the benefit of a covenant is able to enforce it then the Court could grant an injunction to stop any building work. If a landowner has breached a covenant by building another house on their land or by building an extension to their property, the Court can go as far as ordering demolition. Needless to say this can be a very expensive loss.

However, the appearance of a restrictive covenant on a title is not conclusive. There are a number of issues that need to be examined:

• First of all, it is necessary to question whether the covenant is binding and whether the burden of the covenant has passed to the new landowner.
• Even if the covenant appears to be binding there may be no one that has the right to enforce it against the landowner. For a covenant to have any effect the benefit of the covenant must pass to another landowner who wishes to enforce the covenant.
• Some covenants may be badly written or they may be so old that the language used is convoluted and archaic. If the covenant is ambiguous it may not be enforceable.
• Some covenants state that you can satisfy the covenant if the person with the benefit gives their consent. Recent case law suggests that the person with the benefit must not withhold consent unreasonably.
• The history of land ownership of both the land with the benefit and the land with the burden is required.
• It is possible to negotiate with those landowners who have the benefit of the covenant for them to release their rights, but don't approach any person with the benefit if you want to consider insuring against a breach of covenant.
• The Courts have discretion in deciding whether or not to allow a person to enforce a covenant and, if a covenant has been broken, then it may not be enforceable for a number of reasons.
• If all else fails then a landowner may apply to the Lands Tribunal which has the power to discharge or modify a restriction as to the use of land or the buildings on it. There are certain grounds which must be satisfied.

It is always worth getting legal advice on any covenants in your deeds if you do wish to carry out work on your property. Contact Lee & Priestley and ask to speak to one of our solicitors who will be able to offer expert advice on any of these issues.

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