Problems with Restrictive Covenants

These are restrictions on what you can do with your property, or restrictions that limit what other people can do with their property if it will have an adverse impact on yours. You will find them in your title documents. The Land Registry will note them on their record of your title and on the title of the corresponding title.

It is often the case, that when a large piece of land has been developed for residential housing, the titles of all the houses in that estate will contain the same covenants. They will generally be:

  • Limit the liability to sell off garden land and build a new house.
  • Prevent a business being carried out at the property
  • Limit the size of an extension or garage.

 

Planning permission for all or any of the things the covenants prevents can be applied for and the existence of the covenants will form no part in the planning decision. The fact that you get planning permission will not override the validity of the covenants. Issues of planning and issues of restrictive covenants are separate matters and are dealt with in completely different ways.

If you want to prevent activity that would be in breach of a covenant that benefits your land, you need to act quickly once you become aware of that activity taking place. If you delay, you may be deemed to have waived your entitlement to prevent it.

If you want to do things on your land which would be in breach, you will need advice as to how best to deal with the problem. The First Tier Property Chamber (previously called the Lands Tribunal) will consider applications to discharge or modify covenants providing you can show that one of four conditions applies:

  • All relevant parties are agreed that the covenant should be discharged or modified.
  • The covenant is obsolete.
  • The covenant restricts the reasonable use of the land, conveys no practical benefit of a substantial value or advantage on those compensated in money.
  • No injury will be caused to those entitled to the benefit of the covenant by reason of its discharge or modification.

The First Tier Property Chamber jurisdiction is discretionary – in other words there is no right to have an order. As a consequence it is often advisable to seek a modification rather than an outright discharge.

Generally speaking the most common approach is to show that the area has changed significantly from when the restriction was first imposed so that it is no longer relevant. If there have been previous breaches of the covenant that have gone unchallenged, that will assist greatly.

The First Tier Property Chamber assesses what compensation should be payable if it does permit a discharge or modification. There is no hard and fast formula but the Chamber will often try and assess whether removing the covenant has an adverse effect on the value of the objectors land and what sort of price might be fairly asked for a release. That inevitably leads to the question of whether the benefit of getting the modification is worth the legal costs that will be incurred and the compensation you might also have to pay any objectors.

If you are contemplating being an objector to a First Tier Property Chamber application, remember you have to either participate in the process fully or not at all. If you lose interest half way through and pull out, you can be ordered to pay some of the applicant’s costs.

Enquire about this service
Preferred office:
Submit enquiry
Call Us:
Camberley:    +44 (0)1276 686 222
Wokingham:  +44 (0)1189 774 045
Key contacts
Frankie Tierney
Head of Dispute Resolution, Chief Executive