Restrictive covenants are legal agreements that place specific limitations on how a property can be used or modified. They can also create legal challenges for homeowners particularly if they are in a situation where a covenant is breached and a neighbour threatens legal action.
Understanding how restrictive covenants work, who can enforce them, and whether they can be modified or removed is essential for anyone buying, selling, or making changes to a property. This article will explore who has the right to enforce a restrictive covenant when they can be challenged, what the legal process looks like and how an experienced dispute resolution solicitor can help you understand your options.
What is a restrictive covenant?
A restrictive covenant is an agreement between two landowners in which one party agrees not to perform certain actions or make certain changes on their own land.
These covenants are typically put in place when a landowner (individual or organisation) sells property but wants to limit how the buyer can use it. In some cases, the seller may also agree to restrictions on the portion of land they retain. Regardless of how many times the land is sold or how outdated the covenant may appear, the obligation to follow it remains in effect.
What are some examples of a restrictive covenant?
Some common examples of restrictive covenants include:
- Limiting the size or appearance of buildings: For example, a restrictive covenant may prevent a buyer building an extension or painting their house a different colour.
- Limiting the use of buildings: A covenant may stipulate that buildings on the land must be for residential use, and not commercial or vice versa.
- Protecting the natural landscape: This could include prohibiting the removal of trees, altering natural landscape, or the removal of wildlife.
- Rules around occupancy: A building may have restrictions around the number of occupants.
When can a restrictive covenant be enforced?
A restrictive covenant can only be enforced by the beneficiary of the covenant. This means the person(s) or organisation who have the right to enforce the covenant and benefit from it being in place. This can be the original landowner who put the covenant in place, or the person who has inherited the right to enforce it by taking ownership of the land which benefits from the covenant. Common examples of restrictive covenant beneficiaries include:
- A neighbouring landowner
- A landlord for leasehold properties
- A property developer or estate manager
Therefore a neighbour can enforce a restrictive covenant if they are the beneficiary of that covenant, meaning they either put the covenant in place themselves or inherited the right to enforce it with their property/land when they bought it. A neighbour without this right cannot enforce anything.
What should I do if my neighbour tries to enforce it?
If you have breached a restrictive covenant, you can expect a neighbour who is the beneficiary of the covenant to take the following steps:
- Gathering evidence: The beneficiary will likely take photos or access planning records.
- Sending you a formal notice: You can expect to receive a letter requesting compliance or they may opt for an informal discussion initially and this may resolve the issue.
- Seeking legal advice: A beneficiary may enlist the help of a solicitor who can assess the case and recommend legal options.
- Taking legal action: The beneficiary may pursue an injunction to stop or reverse the breach, claim damages, or seek a court order to make you stop or reverse the changes.
If you suspect a neighbour is taking any of these steps, firstly you should check if they are, in fact, the beneficiary of the covenant. You can find this information by checking your property’s Title Register at the Land Registry. If they do have the right to enforce the covenant then you should take the following steps:
- Review enforceability: Firstly you need to understand the claim and compare it to your property deeds. At this point you should seek the help of a qualified dispute resolution solicitor who will be able to review the documents and assess whether there are grounds to claim the covenant has become invalid over time. For example, the covenant may have been ignored by previous owners which may help your case.
- Negotiate or compensate: Your solicitor will be able to advise on whether you can settle by modifying or buying out the covenant.
- Challenge the covenant: If outdated or unfair, your solicitor may suggest that you can apply to the Upper Tribunal (Lands Chamber) for removal.
- Prepare for legal action: You should prepare financially for an injunction, to potentially pay financial damages, or court costs.
It is crucial to get legal advice from a solicitor who can determine enforceability, negotiate resolutions, challenge unfair covenants, and defend you in court. Acting quickly can help you avoid costly mistakes. Contact us to see how we can help you.
What if I do not comply?
If you do not comply when a beneficiary is attempting to enforce a restrictive covenant, you can expect them to take legal action against you. This can consist of:
- An injunction to stop or reverse the breach.
- The beneficiary claiming damages.
- A court order to make you stop or reverse the changes.
There are instances where you can challenge the above actions by arguing that the restrictive covenant is outdated or invalid. To do this successfully it is essential to have a qualified and experienced dispute resolution solicitor by your side. They can gather the evidence and construct a solid argument to counter action being taken against you.
When is a restrictive covenant not enforceable?
There are a number of circumstances in which a restrictive covenant can be removed for being unenforceable. These include:
- It’s too old or outdated: It may no longer be relevant to modern land use and if it was created decades ago, it may be deemed irrelevant now. If the surrounding areas have changed significantly, i.e. the surrounding land is all used for commercial purposes, it could be hard to argue that one property should remain residential because of an outdated covenant.
- Unclear beneficiary: If the beneficiary no longer has a legitimate interest in the enforcement of the covenant, cannot be located, or it is unclear who the beneficiary is, then the covenant becomes void.
- Issues with the covenant itself: If it is vague, badly written or hard to understand then it can be overturned.
- Lack of enforcement: If previous owners of the property have ignored the covenant and have gotten away with it, then it can be argued that the covenant has been abandoned.
If your solicitor agrees that the restrictive covenant is unenforceable, then you can apply to the Upper Tribunal (Lands Chamber) to modify or remove an outdated or unfair covenant. Your solicitor will check whether any of the grounds contained in Section 84 of the Law of Property Act 1925 can form the basis of a claim, including the reasons above and others. Courts may agree if the covenant is obsolete, causing hardship, or no longer benefits anyone.
How do I find if there is a restrictive covenant on a property?
To determine whether your property is subject to a restrictive covenant, review the Title Register on the Land Registry website. This document outlines any restrictions or covenants linked to the land, specifying prohibited actions. You can typically find this information by searching for your property’s address on the Land Registry site.
Conclusion
Restrictive covenants play a significant role in controlling how land and property can be used, often protecting the interests of original landowners, neighbours, or developers. Whether you are looking to enforce a covenant, challenge one, or simply understand your rights, it’s crucial to carefully review property documents and seek legal guidance.
If you are facing enforcement action from a neighbour, verifying their right to enforce the covenant and assessing the validity of the covenant should be your first steps. In some cases, restrictive covenants can be challenged or removed, particularly if they are outdated, unclear, or have been previously ignored. However, ignoring a valid covenant can lead to legal consequences, including injunctions, financial damages, or court orders.
How Eric Robinson Solicitors can help
Given the complexities involved, consulting a dispute resolution solicitor can help you navigate the process, explore negotiation options, and ensure your property rights are protected. We can provide mediation options as well as guide you through a court process if it comes to it. Understanding restrictive covenants empowers homeowners to make informed decisions and avoid costly legal disputes.
For a fixed-fee dispute advice hour, fill out the form and we will book you in with one of our highly experienced and friendly solicitors. We can tell you if you have a case, give advice on an existing dispute or help you strategise your next move with the legal knowledge to protect you from costly litigation.
Need advice? Get in contact with us today to see how we can help you. We have solicitor offices in:
FAQ’s
Can I remove a restrictive covenant?
Yes, you can apply to the Upper Tribunal (Lands Chamber) to modify or remove a restrictive covenant, especially if it is outdated, no longer serves a purpose, or is poorly written. Legal advice is recommended to strengthen your case.
How long does a restrictive covenant last?
A restrictive covenant typically lasts indefinitely and remains attached to the property even if ownership changes. However, if it becomes unenforceable due to changes in circumstances or lack of enforcement, it may no longer be valid.
How can I amend a restrictive covenant?
To amend a restrictive covenant, you need agreement from the beneficiary (the person or organization that benefits from it). If they refuse, you can apply to the Upper Tribunal (Lands Chamber) to request modification.
Who enforces a restrictive covenant?
Only the beneficiary (the individual or entity with the legal right to enforce the covenant) can take action. This is usually a neighbour, landlord, developer, or estate manager who retains an interest in the restriction.
Can you sell a house with a restrictive covenant?
Yes, but the covenant remains in place and applies to the new owner. Buyers should check the Title Register before purchasing to understand any restrictions.
Does a restrictive covenant devalue a property?
It can, depending on the restriction. If the covenant limits extensions, business use, or other desirable changes, it may reduce the property’s appeal and affect market value.
Does planning permission override a restrictive covenant?
No, planning permission and restrictive covenants are separate legal matters. Even if you obtain planning approval for a project, a restrictive covenant could still prevent you from carrying it out. Legal advice is recommended in such cases.
