What to know about Restrictive Covenants

This article was written for and published as original content in East Anglian Daily Times.

Understanding Covenants 

Many properties across England and Wales are subject to covenants – legally binding obligations that affect the owners use of their property in the future. There are two types of covenants: positive (require the property owner to do something, such as maintain a boundary), and restrictive (prevent the owner from doing something, such as altering the appearance of the property).

Unlike positive covenants, restrictive covenants run with the land, therefore binding properties regardless of ownership. This means that an owner could still be bound by a covenant imposed a very long time ago.

These are often imposed when they are sold by a developer to the first owner, or when someone agrees to split their land, such as selling off a section of their garden.

Impacts of Restrictive Covenants 

Restrictive covenants can cover a wide variety of matters; the most common would be not to build on the land or to alter the existing building. Owners are often not aware of the covenant in place, therefore causing problems to arise when it comes to selling. Restrictions of this type are frequently arranged by developers to keep newly built Estates appearing the same as previously agreed in the original planning permission rather than allowing owners to change the overall look of the development.

Breaching a covenant can impose the risk of legal action, with the party benefitting from the covenant potentially seeking enforcement through Court. This could mean reversing or correcting any unauthorised changes.

The age of the Covenant 

It may be more difficult for owners to adhere to the covenant, depending on its age. Often the original party benefitting from the covenant may have died or, in the case of a Company, ceased trading. This can make the covenant unenforceable. However, it may still be enforceable if the original drafting of the covenant says it is made in the benefit of, for example, a neighbouring property – allowing the neighbour to enforce it.

As this is a complicated area, it is always best to seek specialist advice from a Solicitor dealing in property matters before taking any action that might breach a Covenant.

Please contact the expert Residential Property team at Thompson Smith and Puxon by emailing enquiries@tsplegal.com or by calling 01206 574431.