Buying, selling or developing property can become more complicated when a restrictive covenant affects the land. A covenant may restrict what you can build, how you can use a property or whether certain alterations can be carried out.
For homeowners, developers and property investors, discovering a restrictive covenant can raise important questions. Can the covenant still be enforced? Who has the right to enforce it? Can consent be obtained? Can the restriction be removed or modified?
These issues can have significant financial consequences, particularly where development plans are already underway or land has been purchased for a specific purpose.
A restrictive covenant solicitor can help you understand the legal position, review the relevant documents and advise on the options available.
At Charrette Law, we advise property owners, homeowners, developers and investors on restrictive covenants and related property and planning matters.
What Is a Restrictive Covenant?
A restrictive covenant is a legal restriction affecting land that limits how a property can be used or developed.
Restrictive covenants are generally private legal obligations and are separate from planning restrictions imposed by a Local Planning Authority.
A covenant may restrict:
- Building extensions.
- Constructing additional buildings.
- Developing new houses.
- Subdividing land.
- Running certain businesses from a property.
- Changing the use of land.
- Altering parts of a property.
- Carrying out specified works without consent.
The wording of the covenant is particularly important. Similar restrictions can have different legal effects depending on how they were created and the circumstances surrounding the land.
What Do Restrictive Covenant Solicitors Do?
Restrictive covenant solicitors advise clients on the meaning, potential enforceability and practical impact of restrictions affecting their property.
Reviewing the Covenant
A solicitor can examine the wording of the covenant and consider how it may apply to your property and proposed plans.
What Documents May Need to Be Reviewed?
The review may involve examining:
- The registered title.
- Historical conveyances or transfers.
- The original covenant.
- Registration information.
- Subsequent transfers of the land.
Why Historical Documents Matter
The current title register may not always provide the complete background to a restrictive covenant. Older documents may help establish how the covenant was created, which land is affected and who may have the benefit of the restriction.
Identifying Who May Enforce the Covenant
One of the key legal questions is who has the benefit of the restrictive covenant.
Depending on the circumstances, this could include:
- A neighbouring landowner.
- A developer.
- An owner of retained land.
- A management company.
- A successor in title.
Establishing who has the right to enforce a covenant can require detailed examination of title and historical property documents.
When Should You Speak to a Restrictive Covenant Solicitor?
You do not necessarily need to wait until a dispute arises.
Legal advice can be useful at several stages of property ownership and development.
Buying a Property
If you are purchasing a property, restrictive covenants should form part of your legal due diligence.
Buying With Future Development Plans
A covenant could affect plans to extend, convert, subdivide or otherwise develop the property.
Check Before You Commit
Identifying restrictions before completing a purchase can help you assess whether the property is suitable for your intended use and avoid unexpected legal issues later.
Planning an Extension
A restrictive covenant may restrict an extension even where planning permission has been granted or the works fall within permitted development rights.
This means the planning position alone may not be enough. The legal title should also be checked before work begins.
Developing Land
Restrictive covenants can create significant challenges for developers.
A site may have strong development potential and even benefit from planning permission, but a covenant could still create a separate legal obstacle.
Developers should consider:
- Existing restrictive covenants.
- The wording and scope of the restrictions.
- Potential beneficiaries.
- Historical title documents.
- Planning permissions and restrictions.
- Access rights and other property restrictions.
Can a Restrictive Covenant Still Be Enforced?
Potentially.
The fact that a covenant is old does not automatically mean that it is unenforceable. Equally, the existence of a covenant does not automatically mean that it can successfully be enforced.
Whether a covenant remains enforceable will depend on the specific circumstances.
Factors That May Need to Be Considered
A legal review may consider:
- The wording of the covenant.
- When and how it was created.
- The land affected by the restriction.
- The land intended to benefit from it.
- Registration requirements.
- Whether the benefit has passed to another party.
Who Has the Benefit of the Covenant?
The person seeking to enforce a restrictive covenant may need to establish that they have the legal benefit of it.
Why This Can Be Complex
Over time, land may be divided, sold or transferred several times. Establishing whether the benefit of a covenant has passed to a current owner can therefore require detailed legal analysis.
Can You Get Consent to Breach a Restrictive Covenant?
In some circumstances, it may be possible to approach the person with the benefit of the covenant and negotiate an agreement.
Possible Outcomes of Negotiation
Depending on the circumstances, the beneficiary may agree to:
- Consent to proposed works.
- Release the covenant.
- Vary the restriction.
- Accept payment in return for a release.
Documenting the Agreement
Any agreement should be properly documented to ensure that the legal position is clear.
Informal permission or a verbal agreement may not provide sufficient protection where significant property works or development are involved.
Can a Restrictive Covenant Be Modified or Discharged?
In appropriate circumstances, it may be possible to apply to the Upper Tribunal (Lands Chamber) under section 84 of the Law of Property Act 1925.
The Tribunal has the power, in certain circumstances, to modify or discharge restrictive covenants affecting land.
Is Modification or Discharge Automatic?
No.
An application must meet the relevant legal requirements, and the appropriate statutory grounds must be considered.
Why Legal Advice Is Important
Applications may involve detailed legal arguments and supporting evidence. The suitability of this route will depend on the specific covenant, the property and the proposed use or development.
Restrictive Covenants and Planning Permission
A common misconception is that planning permission overrides a restrictive covenant.
It does not.
Planning permission and restrictive covenants are separate legal matters.
Why Both Issues Must Be Considered
You may obtain planning permission for:
- An extension.
- A conversion.
- A new building.
- A change of use.
However, a restrictive covenant may still prevent the work or use from proceeding.
Similarly, resolving a restrictive covenant does not guarantee that planning permission will be granted.
Planning and Private Property Rights
Before beginning development, property owners should consider both the planning position and any private legal restrictions affecting the land.
Restrictive Covenants and Home Extensions
Homeowners often discover restrictive covenants when planning alterations or extensions.
A covenant could potentially affect:
- Rear extensions.
- Side extensions.
- Loft conversions.
- Outbuildings.
- Additional storeys.
- Building beyond a particular line.
Does Permitted Development Override a Covenant?
No.
Permitted development rights relate to planning law and do not automatically remove private legal restrictions contained within a property’s title.
Check Before Starting Work
Before relying on planning permission or permitted development rights, it is sensible to establish whether a restrictive covenant could affect the proposed works.
What Happens If You Breach a Restrictive Covenant?
If a restrictive covenant is enforceable and you breach it, the person with the benefit may potentially take legal action.
Possible Remedies
Depending on the circumstances, remedies may include:
- An injunction.
- Damages.
- Other legal remedies.
Why Early Advice Matters
A dispute can become particularly serious where construction work has already started or has been completed.
Before or After a Breach
It is generally better to investigate the legal position before carrying out works. However, if you have already been accused of breaching a covenant, obtaining legal advice promptly can help you understand your position and available options.
Is Restrictive Covenant Indemnity Insurance Available?
In certain circumstances, restrictive covenant indemnity insurance may be considered.
However, insurance is not suitable for every situation.
Is Insurance the Right Solution?
The availability and suitability of indemnity insurance can depend on factors such as the nature of the covenant, the proposed development and the circumstances surrounding the potential breach.
Legal advice should be obtained before relying on insurance as the solution to a restrictive covenant issue.
How Charrette Law Can Help With Restrictive Covenants
Restrictive covenant issues can involve complex historical documents, property rights and significant financial consequences.
At Charrette Law, we can help property owners and developers understand:
- What a restrictive covenant means.
- Whether it may affect proposed plans.
- Who may have the right to enforce it.
- Whether consent or a release may be available.
- Whether modification or discharge should be considered.
- The potential risks of proceeding.
- What options may be available if a dispute has arisen.
Our wider planning and property services also include Planning Appeals, Planning Objections, and other property development matters.
Get Advice From Restrictive Covenant Solicitors
A restrictive covenant can affect the value, use and development potential of a property.
Whether you are buying a property, planning an extension, developing land or dealing with an alleged breach, obtaining legal advice early can help you understand your position before taking action.
Do not assume that an old covenant can simply be ignored or that planning permission automatically overrides a private legal restriction.
If a restrictive covenant is affecting your property or development plans, contact Charrette Law for expert legal advice on your position and the options available.
Frequently Asked Questions About Restrictive Covenant Solicitors
What Does a Restrictive Covenant Solicitor Do?
A restrictive covenant solicitor advises on the meaning, potential enforceability and impact of restrictive covenants and may assist with negotiations, disputes, modification or discharge.
Can a Solicitor Remove a Restrictive Covenant?
A solicitor cannot simply remove a covenant. However, they can advise on possible routes to obtaining a release, negotiating consent or applying for modification or discharge where appropriate.
Can a Restrictive Covenant Stop Me Building an Extension?
Potentially. The wording of the covenant and the circumstances surrounding the property need to be reviewed.
Does Planning Permission Override a Restrictive Covenant?
Generally, no. Planning permission and restrictive covenants are separate matters.
Can an Old Restrictive Covenant Still Be Enforced?
Potentially. The age of a covenant alone does not automatically make it unenforceable.
Who Can Enforce a Restrictive Covenant?
The person or entity with the legal benefit of the covenant may potentially enforce it. Establishing who has that benefit may require examination of title and historical documents.
What Happens if I Breach a Restrictive Covenant?
Depending on the circumstances, the beneficiary may potentially take legal action. Possible remedies can include an injunction or damages.
Can I Negotiate With the Person Benefiting From a Restrictive Covenant?
Potentially. It may be possible to negotiate consent, a variation or a release depending on the circumstances.
Can Charrette Law Help With Restrictive Covenants?
Yes. Charrette Law can advise property owners and developers on restrictive covenants, including interpretation, potential enforceability, consent, modification and disputes.
