If you have a keen eye on the property market, you may have heard of the term ‘restrictive covenant’, but what does it mean? Let’s take a look at what they are, how they are used, and what happens if they are breached.
What are restrictive covenants?
Restrictive covenants are legally enforceable obligations that are included in a property's title deeds. They’re designed to regulate and prohibit specific activities or modifications to the land by a previous owner, developer, or even a planning authority.
The purpose of restrictive covenants is to preserve the quality, character, and overall feel of a certain property or piece of land. So, in a rural area for instance, there may be a restrictive covenant in place to prevent it from being overdeveloped.
What restrictive covenants can be put in place?
Architectural
One of the various types of covenants used to uphold standards are architectural restrictions. These outline the kind of architectural design or style that needs to be used while constructing or renovating a house.
Environmental
There are also covenants that control what can be done on a certain piece of land. Covenants protecting the environment, such as those that forbid cutting down trees or contaminating nearby water supplies, are also common.
As well as this, it’s also possible to impose access limitations, which restrict or grant particular rights of way or access to certain areas.
Related: Should I move or improve?
What happens if a restrictive covenant is breached?
As restrictive covenants are legally binding, breaching them can have significant legal consequences.
If a restriction is breached, the party who benefits from the covenant can take legal action by seeking an injunction to stop the ongoing infringement or for compensation to cover any financial loss or inconvenience caused.
In certain situations, the court may order the breaching party to carry out their covenant obligations - or, in other words, undo what’s already been done (at their own expense).
Can restrictive covenants be modified or removed?
If someone wants to modify or remove a covenant, they must make an application to the Upper Tribunal under Section 84 of the Law and Property Act, 1925.
There has to be a good reason for the modification or removal of a covenant, such as it being outdated in comparison to the character of the property or neighbourhood, or the covenant inconveniencing a user of the land.
Alternatively, the party who benefits from the covenant can agree to modify or remove the covenant.
How you can get around restrictive covenants
If you are a property owner looking to remove a covenant, it may be a good idea to seek the backing of the local council, since this may help you swing the Tribunal in your favour. As long as your justification for removing a covenant is reasonable, such as building in an area where housing supply is limited, the local council is likely to agree.
You may have more success with overturning the covenant if it was put in place a long time ago, since the property market has changed significantly over time.
Bear in mind, if your application to have a covenant removed is denied, you may still be able to apply for a modification.
For help with selling or adding value to your home, contact Ellis & Co’s expert team
