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Restrictive Covenants

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About

A restrictive covenant is a clause, usually in a property deed or contract, outlining what you can or cannot do with a property of piece of land. These restrictions are specific to each property, and may include preventing alterations or protecting the local area. Ensuring these covenants are accurate and defensible is typically undertaken by solicitors.Next steps

How much does help with Restrictive Covenants cost?

The cost for a licensed solicitor to help with Restrictive Covenants is dependent on many factors including the complexity and specific requirements of the case. On average it is expected to range from £349-£419 but in some cases it could cost as much as £459.

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When you buy a house or a flat, you may be under the impression that, now that your name is on the title deeds, you can do as you please with it. However, buyers beware! This isn’t always the case. Enter: restrictive covenants.

restrictive-covenants

In this guide, we’ll give you the rundown on what these are, how they work and how to handle them. 

What is a restrictive covenant? 

In property law, a restrictive covenant is a promise between two landowners, where one party commits to the other that they won’t do certain things on the land. 

Typically, restrictive covenants come into play when someone is selling land and wants to limit what the buyer can do with it. However, it can also work the other way around, where the person selling agrees to restrict their own use of the land they retain. 

The obligation to follow a restrictive covenant doesn’t go away, even if the land changes hands or how much time passes, but there are steps that can be taken to remove it.

Examples of restrictive covenants

Here are a few examples of restrictive covenants to help you understand how they might work: 

Residential Use Only 

A landowner might impose a restrictive covenant that the land can only be used for residential purposes, this means the buyer can’t later turn it into a commercial property

Architectural Restrictions 

A restrictive covenant could specify certain architectural guidelines, like maintaining a specific style of buildings or making sure structures don’t exceed a certain height in order to maintain a consistent aesthetic in the neighbourhood. 

No Subdivision 

A landowner might restrict the buyer from subdividing the land into smaller plots to maintain the overall character of an area. 

Preservation of Green Spaces 

There might be a covenant to preserve certain areas as green spaces or parks, preventing any development on those specific parts of the land. 

Commercial Restrictions

In residential areas, there might be a restrictive covenant that prevents the establishment of commercial enterprises on the property to make sure it remains a quite, resident friendly space. 

What’s the point of a restrictive covenant? 

Essentially, restrictive covenants are a clever way of stopping property owners from making changes to their property or land which could impact the surrounding neighbourhood, both aesthetically (i.e. how it looks) or otherwise. 

Sometimes, restrictive covenants can also be put in place so landowners can protect the value of the property or land. Or even just to give them some control over what happens to it. 

Restrictive covenants can and do cover a wide range of actions from the kind of fixtures and fittings you can attach to a building to the proper maintenance of gardens. 

How enforceable are restrictive covenants? 

This is a big question. On big housing estates, the company selling the houses usually wants to get rid of all its land, including spots for houses, roads, and green spaces. In these cases, they might not bother holding onto the power to enforce restrictive covenants, and so it gets a bit fuzzy whether they can really make you follow them. 

If a homeowner does break a restrictive covenant, like building an extension without permission, usually nothing much happens…until you want to sell the house. Then you might need to get a special insurance policy to cover any potential issues, although this is usually a requirement of a lender than someone enforcing the convenant. 

The real issue with enforcement of restrictive covenants comes in smaller communities where everyone knows about these rules. In these cases someone may have the right to enforce them, which is when issues can arise.

Other issues to take into account that may make a restrictive covenant unenforceable include: 

  • Restrictive covenants not being properly registered with the Land Charges Department;

  • The original landowner can’t be trace; 

  • The wording is ambiguous;

  • The covenant is historically obsolete. 

To what kind of properties to restrictive covenants apply? 

We’ve mentioned that restrictive covenants are often used to maintain the aesthetics of a neighbourhood, particularly in housing developments. So you might be forgiven for thinking that restrictive covenants are only a quirk of new build homes. 

But this isn’t the case. 

Restrictive covenants can be placed on all kinds of properties, new and old. But they are most commonly used for residential properties.

Do restrictive covenants affect a property's value? 

Yes, restrictive covenants can affect a property’s value depending on the nature of the restrictions. 

In some cases, where a restrictive covenant aims to preserve the character of a neighbourhood, it might enhance the property’s market appeal and value. However, overly restrictive covenants could have the opposite effect as potential buyers might be put off by them, resulting in a lower sale price.

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How long does a restrictive covenant last?

How long a restrictive covenant lasts depends on the terms in the covenant itself. In many cases, restrictive covenants are intended to be indefinite. However, it’s advisable to review the specific wording of the covenant to see if it makes any reference to duration.

How do you know if a property has a restrictive covenant? 

If a property has a restrictive covenant, it’s usually detailed in the property’s title deeds or associated documents. It may also be possible to find information about restrictive covenants on a property from the Land Registry, or associated contracts or planning permission documents. 

When you’re buying a house, a property solicitor or conveyancer usually does a title search during the conveyancing process, which should flag existing restrictive covenants.

Can a restrictive covenant be removed or changed? 

Restrictive covenants don’t have to be set in stone forever. They can change or even be broken, but there’s a proper way to do it. 

If you want to know if you can bend or break restrictive covenants, the first port of call should be the Land Registry documents. These should tell you what the rules are and if there’s a legal way to change them. 

In some cases, restrictive covenants may have already been removed, which you can find out by contacting the beneficiaries. It may also be possible to negotiate to either get rid of the covenants completely or change them. If everyone agrees, the new agreement will be officially recorded with the Land Registry without going to court.

However, it might be necessary to apply to The Upper Tribunal to remove or change a restrictive covenants.

Applying to the Upper Tribunal (Lands Chamber) to discharge or modify a restrictive covenant

If you feel like a restrictive covenant on your property doesn’t serve a person, you can challenge it by applying to the Upper Tribunal (Lands Chamber) to discharge or modify it. First, your solicitor will look into whether it meets specific criteria and, if the rule is outdated or it makes it hard for you to use your land reasonably, it might be changed or removed. 

How much does it cost to remove a restrictive covenant? 

The Lands Chamber charges fees for lodging an application to discharge (remove) or modify restrictive covenants. Here’s a breakdown: 

Step

Fee

Lodging an application

£880

Hearing an application

£1,100 (reduced to £275 if the Tribunal rules without a hearing)

Applying for an extension of time to comply with rules or directions

£110

Hearing to determine an objector’s entitlement to the application

£550

Drawing up the Tribunal’s final order on a successful application

£220

These costs only cover court fees for removing a restrictive covenant, and not legal fees, like solicitor fees.

The cost for a licensed solicitor to help with Restrictive Covenants is dependent on many factors including the complexity and specific requirements of the case. On average it is expected to range from £349-£419 but in some cases it could cost as much as £459.

How long does it take to remove a restrictive covenant? 

How long it takes to remove a restrictive covenant depends on the complexity of the case and if an application is objected to. In some cases, where the matter is settled through negotiations rather than court proceedings, it can be quite quick. 

However, if the matter goes to the Tribunal, it can take on average around 16 months to remove a restrictive covenant. Again, this timescale depends on the size of the application and complexity. 

Do I need a solicitor to remove a restrictive covenant? 

You don’t need a solicitor to remove a restrictive covenant, however it is a great help to have someone on your side to help with these kinds of cases, including a property lawyer or a surveyor. 

Essentially, they can help you understand the restrictive covenant and how to go about removing them quickly. 

Can you object to an application to the removal of a restrictive covenant? 

It is possible to object to the removal of restrictive covenant if an application is made to the Tribunal. To do so, an objector should send a notice of objection form to the Tribunal and the applicant within one month of the date notice of the application was given. 

This notice of objections should say on what grounds an objector is relying on to support their objection, and explain why they believe they are entitled to the benefit of the covenant. 

If you need any help and advice about restrictive covenants, our expert solicitors can: 

  • Examine the restrictive covenant;

  • Give advice as to whether the restrictive covenant is enforceable; 

  • Suggest immediate next steps;

  • Provide advice as to how remove the restrictive covenant via the Upper Tribunal 

To get started, tell us about your case for a free quote and further information. 

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