Restrictive Covenant (land) disputes
Restrictive Covenants relating to freehold land
Literally a "restrictive covenant" is any agreement whereby one of the parties agrees to refrain from doing something, but the words tend to be used in particular in the context of land law and this article is about "restrictive covenants" relating to freehold land.
If a landowner A sells part of their land to someone else B, the deed ("conveyance" or "transfer") giving B ownership of the land may contain a covenant that B will not do certain things on that land. For example A may wish to protect their privacy by means of a covenant that B will not erect buildings over a certain size within a certain distance of the boundary, or there may be restrictions on windows on a certain face over a certain height. As well as protecting privacy, A may wish to maintain the existing character of the area, for example by means of a covenant restricting the use of the land to a "single dwellinghouse".
Shortly after the end of the Second World War, legislation was introduced (now the Town and Country Planning Act 1990) to control development so that "planning permission" from the local council is required before most developments on land, or change of use of land, can take place. Before the War, in the absence of such public control, the use of restrictive covenants was very common and, even now that planning legislation exists, many landowners selling part of their land will want the greater protection of a restrictive covenant rather than relying solely upon the policies of the planning authority which may change from time to time.
There are some other ways in which restrictive covenants can be imposed. For example when the Leasehold Reform Act 1967 was passed allowing house tenants with long leases to acquire the freehold, some schemes were established under s19 of the Act, where a single landlord had owned the freehold of all houses in an area, to continue the restrictions on development with a view to maintaining the character of an area.
Enforcing Restrictive Covenants
If a neighbour threatens to breach a restrictive covenant binding on them you will probably want to obtain an injunction to prevent breach rather than simply claim monetary compensation. An injunction is a discretionary remedy which a court is more likely to grant if it is applied for promptly. However before taking legal action it is important to establish that you do have the right to enforce the covenant. Generally only the owner of land which was, or was part of, the land intended to be benefited by the covenant, can enforce it. If you have a copy of the conveyance or transfer imposing the restrictive covenant it may indicate, by means of a plan, exactly what land is intended to be benefited by the covenant, but many conveyances simply say that the covenant is intended to benefit "the vendor's retained land" in which case it may be necessary to obtain historical conveyances and use them to try to work out what land the vendor had at the time of the conveyance imposing the restrictive covenant.
Historically it was common for each plot of a housing development to be sold subject to similarly worded restrictive covenants, but this, by itself, does not mean that every current plot owner will be able to enforce the restrictive covenants against every other plot owner. Generally an owner of plot A will not be able to enforce restrictive covenants against the owner of plot B unless plot B was originally sold off before plot A. This is because if plot B had been originally sold off after plot A, plot A would not have been part of the vendors retained land intended to benefit from the restrictive covenant imposed on plot B when it was originally sold off by the developer. Sometimes it is possible to show, either by the existence of a specific deed or some other indication in conveyances that there was a common intention by the vendors and each and every original purchaser that restrictive covenants should be mutually enforceable by every purchaser, but this is unusual.
There are also certain legal rules which mean that particular covenants are not enforceable. For example, if the benefited and burdened land have come back into common ownership, at some time after the time of the conveyance imposing the restrictive covenant, the covenant will cease to have effect unless reimposed when the land is subsequently split. Also if the burdened land changes hands when the covenant has not been registered it will, in general, not be enforceable against the new owner who was not aware of it.
Applications under s.84(1) of the Law of Property Act 1925 to discharge or modify restrictive covenants
The owner of land which is subject to the burden of a restrictive covenant can apply to the Lands Chamber of the Upper Tribunal (previously known as the Lands Tribunal) to have it discharged or modified. There are a number of grounds on which an application can be made and some of them are complex (such as the one set out below) but the general principle underlying them is that covenants should be modified or removed if they do not provide any practical benefit to the nearby land entitled to the benefit of them, or if they provide only a modest benefit for which money would be adequate compensation.
the continued existence of the restriction would impede some reasonable user of the land for public or private purposes or, as the case may be, would unless modified so impede such user, and the Upper Tribunal is satisfied that the restriction, in impeding that user, either does not secure to persons entitled to the benefit of it any practical benefits of substantial value or advantage to them or is contrary to the public interest, and that money will be an adequate compensation for the loss or disadvantage (if any) which any such person will suffer from the discharge or modification.
The above explanation of the law is only an overview and in order to be reasonably concise I have had to leave some details out - details which are likely to affect what the law would say about your own situation. So please do not rely on the above but contact me for advice
This page was lasted updated in August 2019 Disclaimer