A restrictive covenant on land is a legally binding obligation that restricts how a property can be used. They are very common, particularly in residential areas developed in the Victorian and Edwardian periods, and can prevent anything from building extensions to running a business from the property. Understanding whether a covenant affects your land, who can enforce it, and whether it can be removed is important before carrying out any development or sale.
Common restrictive covenants include prohibitions on building additional structures, requirements to use the property only as a private dwelling house, prohibitions on commercial use, restrictions on the height or type of fence or wall, and obligations to maintain certain features such as hedges or boundary walls.
The right to enforce a restrictive covenant does not automatically pass with the land that benefits from it. The covenant must have been imposed for the benefit of identifiable neighbouring land, and the person seeking to enforce it must own that land and be able to show the benefit has passed to them. Where the original beneficiary cannot be identified or has lost the benefit, the covenant may not be enforceable in practice, although it will still appear on the title.
Yes. An application can be made to the Upper Tribunal (Lands Chamber) under Section 84 of the Law of Property Act 1925 to modify or discharge a restrictive covenant. The tribunal can grant the application on several grounds including that the restriction is obsolete due to changes in the character of the area, that the restriction impedes a reasonable use of the land without providing practical benefit to those entitled to enforce it, or that modification would not injure those entitled to enforce it.
Where the enforceability of a covenant is uncertain and a property transaction is proceeding, it is common to obtain indemnity insurance covering the risk of enforcement. This is a practical solution for transactions where applying to the tribunal would take too long, but it does not remove the covenant from the title and does not prevent future disputes.
Restrictive covenants limit how land can be used and bind future owners. They can only be enforced by those who have the benefit of the covenant. Application can be made to the Upper Tribunal to modify or discharge a covenant that is obsolete or provides no practical benefit. Indemnity insurance is a common practical alternative in transactions. Specialist legal advice is essential before carrying out works that may breach a restrictive covenant.
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