A restrictive covenant is a condition included in a property’s title that details a rule which the owners and occupiers must abide by. Common examples of restrictive covenants include not building on certain areas of land, not operating a business from a property and not converting a single property into flats.
New- build homes will usually all have the same restrictive covenants to preserve a uniformity across an estate, for example, by keeping front gardens open plan, prohibiting satellite dishes, banning caravans and limiting the size and variety of trees that can be planted. This will apply to all future owners and occupiers of the property, not just the initial purchaser.
Leases of flats commonly contain numerous restrictive covenants to ensure that occupants can live together harmoniously. These often include clauses specifying what sort of flooring is allowed, whether musical instruments can be played, and at what times, and whether pets are permitted.
If you are selling or developing a property, you should discuss with a legal expert what restrictive covenants you should include in the transfer document. It is also possible to require payments for certain acts, for example, if you want the power to approve an extension, you may want your legal and surveying costs reimbursed and an administration fee paid.
Property alterations and restrictive covenants
Before carrying out any alterations to your property, you should ask your solicitor to check your title deeds to see what you are entitled to do and whether there are any relevant restrictions.
Sometimes, a restrictive covenant prohibits property alterations unless written consent is obtained. In that case, you would need to write to the person or company who imposed the restrictive covenant. In respect of older properties, it may be hard to trace whoever now holds the benefit of the restrictive covenant.
If you feel that the clause is unreasonable, you can ask the Upper Tribunal (Lands Chamber) to amend or discharge it.
If you breach a restrictive covenant, you run the risk of being forced to put your property back to the way it was. However, if a restrictive covenant has been breached without complaint for a year or more, you may be able to purchase indemnity insurance which would give you cover in the event of a future complaint.
If you want to sell your property and a restrictive covenant has been breached, then your buyer is likely to will ask you to provide them with an indemnity policy.
Taking action when a restrictive covenant is breached
If you are aware of a breach of a restrictive covenant, then there is the possibility of taking action against the person who is committing the breach. You should speak to a solicitor with expertise in this area as their advice will be important in deciding whether to take legal action and what other options you may have.
The person with the right to take action is the person with the benefit of the covenant. This means that if you are living in a flat, for example, you will need to ask the landlord to enforce the covenants against other flat owners if they are in breach.
If you hold the benefit of a restrictive covenant which is being breached, you can apply to the court for an injunction to stop the breach. The court may alternatively impose damages, requiring the person committing the breach to pay you for the privilege of carrying out the work.
Who we can help
Our property litigation solicitors at Lincoln & Rowe have two decades of experience advising on high-value and complex property litigation. We advise on a wide range of commercial and residential property litigation matters and contentious property issues, including trust and probate disputes where property is involved.
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