Whether you are the owner of land subject to a covenant or the owner of adjoining land benefitting from one, restrictive covenants can have a significant impact upon the use and development of property.
What is a Restrictive Covenant?
Many properties include covenants within the title deeds which restrict the use of the land for the benefit of another party’s land.
Restrictive covenants may:
- Prevent land from being developed
- Limit the use of the land to residential only
- Prevent the causing of nuisance or annoyance
- Prevent land from being used for specific purposes or businesses
- Restrict the number of buildings
- Restrict the number of windows overlooking adjoining land
Whilst a restrictive covenant is a private agreement between two properties, it can be enforceable against subsequent owners.
What is a positive covenant?
Title deeds may also include positive covenants. These differ from restrictive covenants by imposing a positive obligation upon a property owner to do something whereas a restrictive covenant will prevent a property owner from doing something.
Positive covenants may require a property owner to:
- Undertake repairs or maintenance
- Repair and maintain boundary fences
- Pay money
Discharge or modification of covenants
Developers often identify land which would be capable of development, but which is bound by a restrictive covenant preventing the same. In these circumstances, early advice can assist in deciding whether to proceed with a purchase. We act for developers seeking to develop land and for adjoining owners seeking to protect their rights and investment from development which breaches a restrictive covenant.
Section 84 of the Landlord and Tenant Act 1925 allows an owner of property subject to a restrictive covenant may make an application to the Upper Tribunal (Lands Chamber) for its modification or discharge. The owner will need to satisfy the Tribunal as follows:
- That the covenant is obsolete.
- That the covenant impedes the reasonable development of the land.
- That the covenant’s modification or discharge will not injure the objectors.
Common Objections to Development
Common objections to development raised by objectors with the benefit of restrictive covenants in recent cases include:
- The effect of development the character of the neighbourhood.
- Overlooking and loss of privacy.
- Nuisance to adjoining land.
- Alterations to the traditional use of land.
- Loss of natural light.
The Tribunal will carefully consider the wording of the covenant and the submissions by each party plus any existing case law.
Where a restrictive covenant is modified or discharged, the Tribunal has the power to order the applicant to pay compensation to the person entitled to the benefit of the covenant. Compensation is assessed by reference to any reduction in the value of their land.
How we can help
Our services include:
- Bringing or defending injunction applications to halt development
- Applications to modify or discharge restrictive covenants
- Applications for declarations of the extent and enforceability of covenants
- Damages claims
- Nuisance and negligence claims
- Due diligence before purchases
- Party wall disputes
- Alternative dispute resolution including mediation
Our specialist property litigation team support clients and their professional advisors in the resolution of restrictive covenant disputes. We appreciate the need for effective, objective-led action to protect your property interests which can include both litigation and alternative dispute resolution.
For more information, please contact Anna Duffy at firstname.lastname@example.org or James Holton at email@example.com or telephone 01244 354800.
Restrictive Covenant Solicitors
Head of Property