Coodes Solicitors’ Legal Executive David Smith explains what you can do if there is a restrictive covenant on your property.
Residential properties are often subject to a number of restrictive covenants, which limit what a homeowner is able to do with a property.
A developer will usually impose a number of the restrictions when selling off the various plots on an estate. The reason for this is to protect and maintain the characteristic of the estate as a whole, which is beneficial to all the homeowners, preserving the value of each property.
Typical examples of restrictive covenants are not to adapt the property for business use, not to structurally alter or extend the property without the developer’s consent and not to carry out any development on the land.
If there is a restrictive covenant on your property you may be able to remove it. The first step would be to negotiate with the original developer or landowner to enter into a formal agreement to remove the covenants from the title. They will probably request a lump sum for releasing the covenants and for their legal costs to be paid.
It is also possible to apply to the Lands Tribunal for the removal of covenants if for example, the character of the estate on which your property is situated has changed since the restrictive covenants were imposed, making them no longer relevant. Applying to the Lands Tribunal will have cost implications and it is a lengthy process.
If you want to remove a restrictive covenant on your property, speak to a specialist lawyer to find out which option is best for you.
A house seller is often asked to confirm that he or she has complied with any restrictive covenants on the property. A seller may be in breach of a restrictive covenant as a result of having an extension built or structurally altered the property without obtaining the original developer’s consent, for example. In these cases, the seller may offer to provide to the buyers with a restrictive covenants indemnity insurance policy. The policy covers the buyers and their lender for any loss arising as a result of a future enforcement of the restrictive covenants.
Generally, it is difficult to enforce a breach of covenant after 20 years. The Limitation Act 1980 also states that claims in land should be brought within 12 years. However, the time starts to run from when the breach occurs, not the date of the deed.
There are technical reasons that might mean the covenants are not enforceable in certain situations, for instance if the land is unregistered and the original developer did not register appropriate protections.
Even where a property is registered, if there is reference in the Charges Register to the property being subject to restrictive covenants contained in an earlier sale it is worth carrying out a Land Charges search to see if the covenants did become binding on first registration.
If you are concerned about restrictive covenants on a property you are planning to buy or sell, make sure your lawyer can give you expert legal advice.