What Is a Restrictive Covenant?
A restrictive covenant is a legally binding obligation that restricts how land can be used or developed. It is a private legal restriction attached to land and can continue to affect a property even after ownership changes.
Restrictive covenants are commonly created when land is sold, divided into separate plots or transferred from one owner to another. They can cover a wide range of restrictions, including preventing extensions, restricting additional buildings, limiting commercial uses or preventing the subdivision of land.
Examples of restrictive covenants include:
- Preventing extensions or additional buildings.
- Restricting the construction of new houses.
- Preventing certain commercial uses.
- Restricting alterations to a property.
- Preventing the subdivision of land.
- Limiting particular activities on the property.
- Requiring consent before certain works are undertaken.
The precise wording of a covenant is important. A restriction that appears simple may have wider legal implications, so it should be reviewed carefully before you purchase property or begin development.
How Do Restrictive Covenants Affect Property Owners?
A restrictive covenant can affect what you can do with your property even where the proposed work is acceptable under planning law.
For example, you may wish to:
- Build a rear extension.
- Add an additional storey.
- Construct an outbuilding.
- Convert part of a property.
- Build another house on your land.
- Change the use of the property.
- Subdivide a large garden.
If a covenant restricts the proposed activity, you may need to resolve the legal issue before proceeding.
This is particularly important for property owners and developers because discovering a restriction after work has started can result in delays, disputes and potentially significant costs.
Restrictive Covenants and Planning Permission
One of the most important distinctions to understand is that planning permission and restrictive covenants are separate matters.
Planning permission is determined through the public planning system by the relevant Local Planning Authority. A restrictive covenant, by contrast, is a private legal obligation affecting land.
This means that obtaining planning permission does not automatically override a restrictive covenant.
For example, you could receive planning permission to construct an extension but still be prevented from carrying out the work if an enforceable covenant prohibits the development.
Property owners should therefore consider both the planning position and the legal title before commencing development.
Where Can You Find a Restrictive Covenant?
Restrictive covenants are commonly identified through the property’s title documents and historical conveyancing documents.
Your registered title may contain details or references to restrictions affecting the property. However, the current title may not always provide the complete information required to understand the covenant.
Older transfers, conveyances and other historical documents may need to be examined to establish:
- When the covenant was created.
- Who originally imposed it.
- What land benefits from the covenant.
- What land is burdened by it.
- Whether it was properly registered.
- Whether it remains enforceable.
- Who may currently have the benefit.
This is why obtaining legal advice can be particularly valuable where an old or complicated covenant is involved.
Can an Old Restrictive Covenant Still Be Enforced?
Potentially, yes.
The fact that a restrictive covenant was created many years ago does not automatically mean that it has disappeared or become unenforceable.
Whether an old covenant remains enforceable depends on several factors, including its wording, how it was created, the land affected and the circumstances surrounding its enforcement.
You should therefore avoid assuming that a covenant can be ignored simply because it is decades old.
Does a Restrictive Covenant Expire?
There is no general rule that every restrictive covenant automatically expires after a particular period.
Some covenants can continue to affect land for many years. Others may be capable of being challenged, modified or discharged depending on the circumstances.
The age of the covenant is therefore only one consideration. The legal documents and circumstances surrounding the restriction need to be examined.
Who Can Enforce a Restrictive Covenant?
A restrictive covenant may potentially be enforced by the person or entity with the benefit of the covenant.
This could include:
- A neighbouring landowner.
- A developer.
- A management company.
- An owner of retained land.
- A successor in title.
However, identifying who has the benefit of a covenant can sometimes be complicated.
Historical title documents may need to be reviewed to determine whether the benefit has passed to another property or owner and whether that party has the right to enforce the restriction.
What Happens If You Breach a Restrictive Covenant?
Breaching an enforceable restrictive covenant can expose a property owner to legal action.
Depending on the circumstances, the person entitled to enforce the covenant may seek an injunction or another appropriate legal remedy. An injunction can potentially require a breach to stop or prevent proposed works from continuing.
There may also be financial consequences.
For this reason, it is generally preferable to investigate a restrictive covenant before starting work rather than attempting to resolve the matter after a breach has occurred.
Can a Restrictive Covenant Be Removed?
In some circumstances, there may be legal routes for removing or modifying a restrictive covenant.
The appropriate approach will depend on the wording of the covenant, the circumstances of the land and the rights of the person or persons entitled to enforce it.
Possible options can include:
- Negotiating a release.
- Obtaining consent from the person with the benefit.
- Applying to modify or discharge the covenant.
- Challenging its enforceability where appropriate.
- Considering indemnity insurance where suitable.
Each option has different risks, costs and practical considerations.
Negotiating a Release
One possible approach is to negotiate directly with the person who has the benefit of the covenant.
They may agree to release or vary the restriction in return for an agreed payment or other terms.
However, identifying the correct party is important. Any agreement should also be properly documented to ensure that it legally releases or varies the relevant restriction before you proceed with the proposed works.
Can the Upper Tribunal Modify a Restrictive Covenant?
In appropriate circumstances, an application can be made to the Upper Tribunal (Lands Chamber) under section 84 of the Law of Property Act 1925.
The Tribunal has jurisdiction in certain circumstances to modify or discharge restrictive covenants affecting land.
However, this is not an automatic process. An application must satisfy the relevant statutory requirements, and the circumstances surrounding the covenant will need to be carefully considered.
Factors may include the purpose of the covenant, changes affecting the neighbourhood or land and whether continuing the restriction provides a practical benefit to those entitled to enforce it.
Specialist legal advice should be obtained before pursuing this route.
Restrictive Covenants and Property Development
Restrictive covenants can be particularly important for property developers.
Before purchasing development land, it is sensible to investigate whether the title contains restrictions that could affect the proposed scheme.
A developer may otherwise purchase land believing that planning permission is the primary obstacle, only to discover that a restrictive covenant prevents or limits the proposed development.
Property due diligence should consider:
- The registered title.
- Historical conveyances and transfers.
- Existing restrictive covenants.
- Potential beneficiaries.
- Planning restrictions.
- Development potential.
- Access arrangements.
- Other legal restrictions affecting the land.
Identifying restrictions before purchasing land can help developers assess potential risks and avoid unexpected costs.
Restrictive Covenants and House Extensions
Homeowners can also encounter restrictive covenants when planning extensions or alterations.
An extension may be permitted under planning law or may benefit from permitted development rights, while a covenant could separately restrict the proposed work.
For example, a covenant might restrict:
- Building beyond a particular line.
- Additional structures.
- Alterations to the property.
- Construction on a specific part of the land.
Before beginning an extension, check whether the title contains restrictions that could affect the proposed works.
Restrictive Covenants and Commercial Property
Restrictive covenants can also affect commercial property.
A covenant may restrict the type of business operated from a property, its use, development of additional buildings, subdivision of land or particular activities taking place on the site.
This is particularly relevant when purchasing commercial property for a specific business purpose.
Planning permission may allow the proposed use, but a restrictive covenant could create a separate private legal obstacle.
Can You Get Planning Permission If a Restrictive Covenant Exists?
Yes, potentially.
A Local Planning Authority generally considers planning matters when determining a planning application. It does not normally determine whether a private restrictive covenant is enforceable.
You may therefore receive planning permission even though a restrictive covenant affects the proposed development.
The key point is:
Planning permission does not cancel a restrictive covenant.
If both apply, you may need to satisfy the planning requirements and resolve the private legal restriction before proceeding.
What If You Discover a Restrictive Covenant After Buying a Property?
If you discover a restrictive covenant after purchasing a property, establish exactly what the restriction says and whether it affects your intended use of the property.
Do not assume that the covenant prevents everything you want to do. Equally, do not assume that it can simply be ignored.
A legal review can help establish:
- What the covenant actually prohibits.
- Whether it applies to your property.
- Who may enforce it.
- Whether the benefit has passed to another party.
- Whether there are grounds to challenge or modify it.
- Whether consent can be negotiated.
- What risks exist if you proceed.
Early advice can be particularly valuable where you have already obtained planning permission or are preparing to start construction.
How Charrette Law Can Help With Restrictive Covenants
Restrictive covenant matters can involve historical title documents, property law and proposed development plans.
At Charrette Law, we can help property owners and developers understand how restrictive covenants may affect their plans and identify the legal options that may be available.
Our related property and planning work includes:
- Restrictive covenants.
- Planning applications.
- Planning objections.
- Planning appeals.
- Commercial planning permission.
- Permitted development.
- Property development.
- Environmental legal advice.
- Section 106 Agreements.
- Section 278 Agreements.
Obtaining advice before starting work can help you identify potential legal restrictions and reduce the risk of unnecessary disputes.
Get Expert Advice on Restrictive Covenants
A restrictive covenant can significantly affect how land is used or developed, but discovering one does not necessarily mean that your plans have to stop.
The important thing is to understand the restriction, establish whether it is enforceable and identify the options available before taking action.
Whether you are buying a property, planning an extension, developing land or dealing with an existing dispute, specialist legal advice can help you make informed decisions.
If a restrictive covenant is affecting your property or development plans, contact Charrette Law for expert advice on your legal position and the options available to you.
Frequently Asked Questions About Restrictive Covenants
What is a restrictive covenant?
A restrictive covenant is a legal obligation that restricts how land can be used or developed. It can continue to affect a property after ownership changes.
Can I ignore a restrictive covenant?
You should not assume that you can ignore a restrictive covenant. Breaching an enforceable covenant can potentially result in legal action and other consequences.
Do restrictive covenants expire?
Not necessarily. The age of a covenant alone does not determine whether it remains enforceable.
Can planning permission override a restrictive covenant?
Generally, no. Planning permission and restrictive covenants are separate matters. Obtaining planning permission does not automatically remove a private legal restriction.
Can I remove a restrictive covenant?
Potentially. Depending on the circumstances, you may be able to negotiate a release or seek to have the covenant modified or discharged.
Can a neighbour enforce a restrictive covenant?
Potentially, if they have the legal benefit of the covenant and the relevant requirements for enforcement are satisfied.
Can a restrictive covenant stop me building an extension?
Potentially. The precise wording of the covenant must be examined to determine whether it restricts the proposed extension.
Can a restrictive covenant affect commercial property?
Yes. Covenants can restrict commercial uses, development, subdivision or particular activities on commercial land.
Can Charrette Law help with restrictive covenants?
Yes. Charrette Law can advise property owners and developers on restrictive covenants, their potential impact and the legal options that may be available.
