If you are a property owner or considering buying a new property, restrictive covenants could affect you. Here’s how to find out if your property is affected by a restrictive covenant, what the legal ramifications are, and how to ensure that you stay on the right side of the law.
What is a restrictive covenant?
Restrictive covenants in property are clauses restricting or forbidding certain actions by the property owner. They are legal obligations that have usually historically been drawn up as an agreement between the owner of the property in question and a neighbouring landowner (for the neighbour’s benefit). They are usually written into the deeds of the property – so they continue to apply to the land even when it is sold on, or the current owner dies.
Restrictive covenants can apply to either the freeholder (who may be prevented from constructing additional buildings on the land, for example) or the leaseholder (common restrictive covenants affecting leaseholders may dictate whether occupants can keep pets or play music).
Typical examples of restrictive covenants in property
A restrictive covenant could dictate anything from the outward appearance of the property to the purpose for which it is used. The reason behind them is usually to benefit a neighbouring landowner – so the actions forbidden are often those that would cause a nuisance or disruption to neighbours. Here are some common restrictive covenants affecting property owners:
• Not using the property as a business premises
• Not extending the property or adding new outbuildings (even if planning permission is granted)
• Not constructing fences or walls above a certain height
• Not making noise after a certain time in the evening
• Not keeping pets or livestock
• Not altering the external appearance of the property (this could encompass adding satellite dishes or CCTV or painting the front door)
What are the legal implications of a restrictive covenant?
While restrictive covenants are often buried deep down in the legal documentation, it’s important to remember that they can be legally enforced. Here’s what you need to know:
• If you wish to do something that is forbidden by a restrictive covenant, it is possible to get permission from the beneficiary of the covenant. If they agree, you may be able to go ahead with your desired course of action.
• If you decide to go ahead without agreement, the beneficiary can obtain a court injunction to prevent this.
• If a restrictive covenant is ignored or contravened, the property owner could be faced with a claim for damages from the beneficiary of the restrictive covenant.
• Property owners affected by restrictive covenants can obtain indemnity insurance to protect them from potential injunctions.
• In certain cases it may be possible to apply to the Lands Tribunal to get a restrictive covenant lifted. This may happen if the contents of the covenant are now obsolete (for example, if the neighbouring property it protects is no longer in existence) or if the beneficiary of the covenant agrees.
Support and advice for property owners
At David Charles Property Consultants, we offer property management services including block management for landlords. As property experts with extensive legal knowledge of everything from restrictive covenants to health and safety obligations, our team can take care of all your needs. Contact us on 0208 866 0001 to find out how we can help you.