Updated February 2019.
Pam Johns, Rural Services team leader at Coodes Solicitors explains how to update or remove restrictive covenants from your land.
A restrictive covenant is a contractual obligation that restricts the use of land or property. These legally binding agreements are on the property deeds. They may, for example, specify the kinds of buildings that are allowed to be developed there, or prevent any new houses from being built on the land.
Restrictive covenants are often centuries old and the reason they were drafted in the first place may no longer be relevant. For example, a recent case in London saw a developer buying land, which was subject to a restrictive covenant not to use it for any purpose other than as a sports club or to build detached houses. The reference to the sports club was no longer relevant, as it had not been used as a sports ground for many years.
Restrictive covenants can cause problems when farmers want to sell or develop land. A land with restrictive covenants limiting its future use can seriously reduce its value. So, what can landowners do if they want to update or remove restrictive covenants?
Many landowners assume that when a restrictive covenant is in place it cannot be removed and they just have to live with it. Fortunately, this is not the case.
The first thing to find out is whether or not the covenant is still able to be enforced. If it is not enforceable then an application can be made to the Land Registry to remove the covenant from the deeds. If it is, it may be possible to negotiate with the party that has the benefit of the covenant to remove by entering into a Deed of Release. There will probably have to be some financial recompense for the release of the covenant.
If a landowner feels a restrictive covenant is unreasonable, they may have a case for having it removed altogether or, if that’s not appropriate, possibly varying or amending the covenant. Getting expert advice from a lawyer and/or planning consultant would be a good place to start. An application can be made to the Lands Tribunal to have a covenant removed or varied. The Lands Tribunal will consider any changes to the property or neighbourhood since the covenant was put in place, whether the covenant is unreasonably preventing developments that would be beneficial.
The downside to such an application is that it can be a very lengthy and expensive process, sometimes taking up to two years.