Land Registry Restrictive Covenants on Property
Restrictive covenants on property pass enforceable rights and obligations from the original land owner to the new land owner. The objective is to control the use of the land after it has been sold.
Check your title deeds to determine if any restrictive covenants affect your land. In some titles, you may find the restrictive covenants aren't stated; instead, refer to a Schedule listed within the transfer from the original land owner.
Issues arise when restrictive covenants are breached, which may affect your ability to sell or get a mortgage on the property without a suitable remedy or indemnity insurance.
What is a restrictive covenant?
A restrictive covenant is a private agreement between land owners where the seller will restrict the use of the land in some way for their own benefit. Once agreed upon between the land owners, restrictive covenants are placed in the title deeds to the property and will be passed down to each buyer of a property.
Restrictive covenants are enforceable with the original landowner as long as they are restrictive or 'negative' in their effect and effectively allow private planning control. One typical example is a restrictive covenant on a housing development that might protect property values by stopping the modification of the appearance of individual dwellings on the development from a standard 'look' or restricting some activity from taking place within its boundaries.
Types of restrictive covenants
Use of property
This restricts who the property is used. For example, it cannot be used as a commercial workshop, or you cannot dry your clothes in the garden.Development
A covenant can limit the number of properties/outbuildings on the land or even the size of an extension.Maintenance
Maintenance obligations for shared facilities or boundaries are the most common.
How long do restrictive covenants last?
Restrictive covenants 'run with the land' and pass on indefinitely until they are challenged and removed by a court order. This means you may be buying a property where, in the 1700s, a landowner didn't want the sold land to be used as a pig farm or to allow more than one property. This restrictive covenant is still enforceable today for any owner of that land.
Removing a restrictive covenant
You can remove a restrictive covenant from the Land Registry with the original land owner's or their successor's consent. This does have its challenges:
- Where or who has the benefit? With deeds dating back hundreds of years, you may have to search for who currently benefits from the restrictive covenant and where to write to them. This is easier said than done, especially if it was a private landowner.
- Will they agree to it? With some restrictions, especially around developments, you may struggle to get the beneficiary of the restriction to modify it. If they agree to it, it often comes with a premium, and you'll be liable to pay for the legal fees to remove the covenant.
- No longer able to insure Once you make enquiries with the party benefiting from the restrictive covenant, you can no longer take out indemnity insurance as you have alerted the beneficiary that you intend to breach it or that it has been breached.
The cost of removing restrive covenants will be more than £2,000 in legal fees, and the result may well be a covenant that cannot be removed.
Apply to the Upper Lands Tribunal for removal
This can be more costly and lengthy, but could permanently remove the restriction from your title, so you might end up potentially making the land interest more appealing to future buyers. You would need to prove one of the grounds set out in s84 Law of Property Act 1925, usually that it is obsolete or impedes on reasonable development or use. We go into detail below about the grounds for removing a restrictive covenant.
Law of Property Act 1925
The Lands Tribunal has powers under section 86 of the Law of Property Act 1925 to dissolve or relax covenants that appear to be out of date or unreasonable. It states:
84. Power to discharge or modify restrictive covenants affecting land
(1A)Subsection (1) (aa) above authorises the discharge or modification of a restriction by reference to its impeding some reasonable user of land in any case in which the Upper Tribunal is satisfied that the restriction, in impeding that user, either— (a)does not secure to persons entitled to the benefit of it any practical benefits of substantial value or advantage to them; or (b)is contrary to the public interest;and that money will be an adequate compensation for the loss or disadvantage (if any) which any such person will suffer from the discharge or modification.
(1B)In determining whether a case is one falling within subsection (1A) above, and in determining whether (in any such case or otherwise) a restriction ought to be discharged or modified, the Upper Tribunal shall take into account the development plan and any declared or ascertainable pattern for the grant or refusal of planning permissions in the relevant areas, as well as the period at which and context in which the restriction was created or imposed and any other material circumstances.
(1C)It is hereby declared that the power conferred by this section to modify a restriction includes power to add such further provisions restricting the user of or the building on the land affected as appear to the Upper Tribunal to be reasonable in view of the relaxation of the existing provisions, and as may be accepted by the applicant; and the Upper Tribunal may accordingly refuse to modify a restriction without some such addition.
Read the Law of Property Act 1925
Breaching a restrictive covenant
If you are buying a property where the current or previous owners have breached a restrictive covenant, an indemnity insurance policy is often suggested. For a relatively small cost, between £200 and £1,000, the insurance protects the mortgage lender if the original land owner seeks to enforce the covenant adherence.
This option is only available if the original landowner has not been informed of the breach of the covenant.
What are the risks of breaching?
The consequences of a breach of a restrictive covenant can be quite severe but will always depend on the covenant itself. Usually, the person with the benefit of the covenant (the covenantee) would serve notice to you stating that you must rectify the breach. If this is not carried out, the covenantee could apply to have the covenant enforced, whatever the cost, via going to court. The court, if it finds that you've breached a restrictive covenant, can grant an injunction against you regarding the breach and award:
- Compensatory damages to reflect the diminution in the value of the benefited land because of the breach
- Damages awarded in lieu of an injunction
This option is only available if you do not have a mortgage lender because if there has been a breach of a restrictive covenant, then the mortgage lender normally requires:
- Confirmation from the original legal owner's title successor that the restrictive covenant has been modified or
- An indemnity policy to protect against any future claim for the breach.
If you doubt a restrictive covenant is in place, you can also apply to a court for a declaration. The court can determine:
- Whether or not a restriction does or may, in certain circumstances, exist, and
- What the nature of a restriction is, and if it is enforceable
This can be useful when there is uncertainty about the covenant or whether or not action may be taken due to a restrictive covenant breach. A negative declaration can remove any need to apply for indemnity insurance.
What are the grounds for discharge or modification of a restrictive covenant?
- Restriction is Obsolete - obstructs a reasonable user of the land or it is not in the public interest
- No injury to a person who benefited from the restrictive covenant
Examples of restrictive covenants
Here are some examples of restrictive covenants in your title deeds. You'll see that some of the restrictions are actions most owners wouldn't undertake nowadays; however, they are still enforceable.
- Forthwith to erect and forever after to maintain in good condition a spile fence along the boundary of the land marked "T" within the boundary on the said plan" - In this case T would be shown on the title plan registered to the property title. Read more - How do I handle boundary disputes?
- No tall chimney shall be erected on the said land nor shall any building be erected thereon other than dwellinghouses with or without garages, and other outbuildings to be used therewith
- No trade or business of any kind whatsoever shall be carried on nor shall any beer wines or spirits be sold on the said land or any building erected thereon and the said land and all buildings erected thereon shall be used for private residential purposes only
- No bricks or tiles shall at any time be made nor shall any clay or lime be burnt on the premises nor shall anything be done thereon which may be or grow to be a nuisance or annoyance to the Vendor or the neighbourhood
- No building nor any wall or fence exceeding five feet six inches in height shall be erected on any part of the land conveyed by the foregoing Indenture outside the building line shewn on the aforesaid plan
- No objectionable or offensive trade business or manufacture or any trade business or manufacture that may be or become a nuisance or annoyance shall be carried on upon the said land nor in any building to be erected thereon
- No public house Inn Beerhouse or Beershop of any description shall be built on the said land nor shall any wine malt liquor or spirituous liquor be sold on the said land or in any building to be erected thereon
- The Purchaser his heirs executors administrators and assigns shall maintain and keep in repair so much of the footpath aforesaid to the centre thereof with the curbing gutters and drains thereof as adjoins the said land until the same shall be adopted by the Local Authority
Caragh is an excellent writer and copy editor of books, news articles and editorials. She has written extensively for SAM for a variety of conveyancing, survey, property law and mortgage-related articles.
