Restrictive covenants are clauses in a property's deeds or transfer documents that limit what the owner can do with the land. They commonly prevent extensions, restrict the use of the property to residential purposes, or prohibit specific activities. When a neighbour breaches a restrictive covenant, you may be able to enforce it through the courts.
This guide explains what restrictive covenants are, who can enforce them and how the process works.
A restrictive covenant is a promise relating to the use of land. It is created in a deed, usually when a property is sold by a developer or where one parcel of land is divided.
Common restrictive covenants include:
Restrictive covenants run with the land. They affect not just the original parties to the deed but all subsequent owners.
Only certain people can enforce a restrictive covenant. The key requirements are:
The covenant must have been imposed for the benefit of land you own. If the covenant was created when the original developer split a estate, the covenant typically benefits all the other plots on the estate. You need to be the owner of land that benefits.
Even if you own land that originally benefited from the covenant, you need to show that the benefit has passed to you as the current owner. This can be done by:
The burden of restrictive covenants passes to subsequent owners only if certain conditions are met. The Tulk v Moxhay principle requires:
For registered land, the covenant is usually entered on the Land Register, which provides notice.
The starting point is the Land Registry title document for your property and your neighbour's property. These show:
The Land Register entries often refer to deeds that contain the original covenants. You may need to obtain copies of these from the Land Registry.
Read the covenant carefully. Determine:
Where the covenant prohibits new building without consent and the neighbour has built without seeking permission.
Where the covenant requires the property to be used as a single private dwelling and the neighbour is running a business from it.
Where the covenant prevents conversion or alteration and the property has been converted into multiple dwellings.
Where the covenant requires existing walls or fences to be maintained and the neighbour has demolished or moved them.
Where the covenant prohibits nuisance and ongoing activity is causing significant disturbance.
An order requiring the neighbour to stop the breach. This may include orders to remove unauthorised structures or to cease specific activities. Injunctions are the primary remedy for breaches of restrictive covenants.
In some cases the court will award damages instead of an injunction. This is more common where the breach is minor, where it would be unreasonably onerous to require removal, or where the breaching party acted in good faith.
Compensation for any loss caused by the breach.
A formal declaration of the parties' rights, useful where the dispute is about the meaning of the covenant.
Before issuing proceedings, the courts expect parties to attempt to resolve the dispute. The Practice Direction on Pre-Action Conduct applies. Typical steps include:
A breaching neighbour may not be aware of the covenant. A measured letter can sometimes resolve the issue without proceedings.
Proceedings are typically issued in the High Court or County Court depending on value and complexity. The process involves:
Where urgent injunctive relief is needed (for example, to stop work in progress), an interim injunction can be sought at the outset of proceedings.
Arguing that the covenant has been released, modified or no longer applies.
Arguing that the claimant does not have the benefit of the covenant.
Arguing that what was done does not fall within the prohibition.
Arguing that the necessary consent was given (expressly or by acquiescence).
Arguing that the claimant knew of the breach and did not object for so long that they should not now be entitled to relief.
The neighbour can apply to the Lands Tribunal under section 84 of the Law of Property Act 1925 to discharge or modify the covenant. This is a separate process and the criteria are demanding.
Some covenants date back many decades and the wording can be unclear. Interpretation may require careful legal analysis.
For older estates, working out which properties benefit from which covenants can be complex.
Where many properties benefit, coordination between potential claimants can be difficult.
Enforcement proceedings can be expensive. The likely cost should be considered against the likely benefit of enforcement.
Enforcement of restrictive covenants is a technical area. The interpretation of the covenant, the question of who benefits and the question of remedies all require careful analysis.
A direct access barrister with property litigation experience can advise on the strength of an enforcement action, draft the letter before action and represent you at any subsequent hearing.
Barrister Connect matches people directly with specialist barristers, without the delay or cost of instructing a solicitor first. Send us a short outline of the case, we identify the right barrister and you receive a fixed-fee quote before committing. Get in touch with our team to start.