Covenants: Exactly how restrictive are they?

When a land owner sells a piece of land he can require that the buyer and all future owners will be restricted in what they can or cannot do on the property sold including any forthcoming developments. These stipulations are called restrictive covenants and they will be found on the majority of titles. They stem back to an era before there were planning controls, when private land owners effectively imposed their own planning controls upon the sales of pieces of their land by using restrictive covenants as a means of restricting what those who bought land could then do with it. With the increase in infill developments and sub-division of land creating smaller plots or houses or flats or town house developments and the ever increasing demand for building land, restrictive covenants are fast becoming more and more important both to the land owners and to those wishing to carry out re-development.

Restrictive covenants are very varied in their nature and, amongst other things, can restrict future development, control the appearance of future developments and control what activities are carried out on land. The original idea behind the concept was to protect the land retained by the seller which was, in the past, often occupied by the Seller and to ensure that his retained land was not devalued by any consequences of what might happen on the land that he sold off. Some covenants that appear on titles may either be unenforceable or obsolete. The difficulty is knowing whether they need to be treated with a gravity of attention or alternatively whether they are of any commercial value.

Where the enforceability of a covenant is unclear 
or the people able to enforce such covenants are not known, it is in some cases possible to insure against those covenants being enforceable and there being somebody able to enforce them.

There are many technical and legal issues dictating whether or not a covenant is still enforceable. The main ones are as follows:

1. The person seeking to uphold the covenant must 
be able to prove that they 
are the person entitled 
to enforce them as successor to the original person having the original benefit of the covenant.

2. They must be able to identify a specific area of land owned by them which holds the benefit of the covenant and is still capable of reaping the benefits of the original covenant.

3. The applicant must be able to show the precise area of land which is the subject of the covenant.

It can be very difficult when looking at old covenants to prove the succession of people entitled to the piece of land which has the benefit of the covenants and it is often also difficult to prove the precise area of land which is the subject to the covenant.

One of the other interesting facts about covenants is that the Land Registry only note covenants against the land that has the burden of the covenant and is subject to it. They do not provide any notice on the title to the land which has the benefit. You cannot, therefore, just by looking at your deeds, tell whether you hold covenants over your neighbours land. Solicitors are able to undertake that research for you and to confirm whether or not you could have the benefit of covenants over adjoining land.

Part two of Tim Sharpley’s article on restrictive covenants will feature in our next issue. In this section he will inform us of the ways to change or remove the power of these regulations.