A restrictive covenant (in conveyancing terms) is a promise not to do something on your land or property. It might be something like a prohibition against:
- Altering the property. Maybe you can’t build an extension or convert the house into flats
- Operating a trade or business from the property
- Installing security cameras
- Parking a caravan in the front garden
- Keeping chickens
- Having a pet
- Building an outbuilding, shed, or swimming pools
- Using the property for Air BnB
How will you know if you’re subject to a restrictive covenant?
A restrictive covenant will be recorded in your Title Register under Section C, or in the deeds. If you don’t have a copy of your Title Register to hand, you can download it from the HM Land Registry for a small fee (£3 at the moment). If there is no sign of a restrictive covenant in the charges register (section C), then your property or land is likely to be free from restrictive covenants.
Your conveyancing lawyer will have flagged any restrictive covenants to you when you bought the property. But if you can’t remember, double check with a conveyancer.
What’s the point of restrictive covenants?
You often come across restrictive covenants in new builds, because the property developer wants all the houses to remain similar. That’s for aesthetic reasons, and also to maintain some uniformity in the value of the buildings.
Other restrictive covenants are in place to protect the neighbours, and to keep a certain look and feel to the neighbourhood.
What happens if you breach a restrictive covenant?
The person who owns the benefit of the restrictive covenant might enforce it against you, if you breach it. That means that you might be forced to:
- Undo an extension (or other work), built in breach of the covenant
- Pay a fee
- Face legal action
The person who owns the benefit is usually the landowner or the freeholder. In some cases, the landowner is easily identifiable, and you’ll be able to have a conversation about your plans before you go ahead.
But sometimes it’s not possible to identify the landowner. In those circumstances, you have a choice about whether to run the risk of breaching the covenant, or to refrain from carrying out the work.
Can you get out of it?
Restrictive covenants ‘run with the land,’ which means you inherit them when you buy the property and you are bound by them.
But if you’re subject to a restrictive covenant that you want to remove, you have a few options:
- Negotiate with the landowner
You can open up a discussion with the landowner or the freeholder about your plans, and if they don’t object then they may sign a Deed of Discharge. That deed is lodged with the Land Registry and releases you from the covenant. Depending on the nature of the covenant, you may come to an agreement that you can carry out the work, so long as you give the landowner some compensation.
- Check if it is enforceable
A restrictive covenant may be unenforceable if it’s not worded correctly. Perhaps it uses very old-fashioned language, or its meaning is ambiguous. You’ll need a lawyer’s point of view on whether or not it is enforceable.
- Apply to the Lands Chamber of the Upper Tribunal
You can apply to discharge the restrictive covenant. There are costs involved in the process (roughly £1,000 – £2,000), but you’ll have clarity at the end of it about whether or not you can carry out the work you want to do without repercussions.
- Get insurance
If you have breached the restrictive covenant, and nobody has challenged you for over 12 months, then you should be able to get insurance to protect what you have done. This policy lasts in perpetuity and can be passed on to future owners of the property. Your solicitor will be able to tell you if any of the previous owners have this policy.
How a conveyancer can help
A conveyancing lawyer can help you understand whether or not you are subject to a restrictive covenant, and if your plans are likely to breach it. We can talk you through the risks of breaching your restrictive covenant and advise you on ways to minimise that risk, or protect against the consequences.