Are restrictive covenants on land enforceable?

Restrictive covenants on land are a critical aspect for property owners in England and Wales to understand. These legal obligations can significantly affect how land can be used. It can also potentially impact property value and owners’ plans.

Many land owners may face issues with restrictive covenants when it comes to obtaining planning permission to develop their land. This raises many questions, such as are restrictive covenants on land enforceable, and who enforces them?

Restrictive covenants are legally binding conditions. They are often written into a property’s deed or contract, restricting the land’s use by the owner.

A restrictive covenant restricts or prohibits certain uses or activities to protect the value and enjoyment of adjacent properties.

Common examples include restrictions against commercial use in residential areas, prohibitions on building additional structures, and mandates to maintain the architectural style of a neighbourhood.

For instance, a covenant might prevent a new homeowner from adding a modern extension to a historically styled row of houses. the covenant will be in place to preserve the area’s aesthetic and historical value.

Are restrictive covenants on land enforceable?

In England and Wales, restrictive covenants are generally enforceable, provided they meet specific legal criteria.

The covenant must offer a clear benefit to land that can be identified. It must not be deemed obsolete or overly restrictive in light of current law and societal norms.

Recent legal cases, such as Davies-Gilbert v Goacher (2022), have highlighted the courts’ considerations in determining a covenant’s enforceability. This includes the original intent of the covenant and its relevance today.

The Davies-Gilbert v Goacher case highlights the principle of “Wednesbury reasonableness” in the context of restrictive covenants, particularly those requiring consent to plans for development.

The High Court ruled that the process of deciding whether to grant consent under a restrictive covenant must be done in good faith and not arbitrarily.

This case is significant for developers dealing with covenants that require plan consent. It establishes a standard of reasonableness, ensuring that parties in benefit of the restrictive covenant act fairly when withholding consent​.

Who enforces restrictive covenants on land?

Restrictive covenants can be enforced by the party who benefits from the covenant. This is often the original landowner or their successors in title.

This means that not just anyone can enforce a restrictive covenant. Only those who hold a tangible, legal interest in the land’s use are entitled to do so.

In certain situations, local authorities may also play a role in enforcement. This is often the case if the covenant aligns with local planning regulations and policies.

How to find restrictive covenants on land?

Identifying restrictive covenants is crucial before purchasing property or planning development. These can be found in the property’s title deeds or registered documents held by the Land Registry. Conducting a local land charges search is another essential step, as it can reveal any covenants registered against the property. Potential buyers should also be vigilant for less obvious restrictive covenants, consulting legal advice when in doubt.

It is important to note that restrictive covenants run with the land, meaning the covenant is attached to the land itself rather than to the owner of the land. As such, the covenant binds not only the original parties who agreed to it but also subsequent owners and occupiers of the land.

How to Remove Restrictive Covenants on Land?

Removing or modifying restrictive covenants can be challenging but not impossible. Property owners have several avenues. This includes applying to the Lands Tribunal under the Law of Property Act 1925, negotiating directly with the covenant’s beneficiary for its removal, or obtaining indemnity insurance as protection against potential enforcement actions.

Success stories often involve demonstrating that the covenant no longer serves its original purpose or that it unduly burdens the property’s use without offering substantial benefits to others.

What happens if someone breaches a restrictive covenant?

Breaching a restrictive covenant can lead to legal action from the person entitled to enforce the covenant. This can potentially lead to court proceedings resulting in a court order to cease the violating activity or to remove any unauthorised developments.

In addition to legal costs, those who breach the covenant may face damages or be required to restore the land to its previous condition.

However, mediation and negotiated settlements are common, with parties often reaching an agreement that modifies the covenant’s terms to suit both sides.

Are restrictive covenants on land enforceable? FAQs

Can a restrictive covenant be applied retroactively to properties that were initially exempt?

Restrictive covenants are typically established at the time of property sale or development. They are intended to apply to future owners of the property. However, changing them retroactively is complex and would generally require agreement from all affected parties, including any new owners. Legal advice is essential in such cases.

Does the age of a restrictive covenant affect its enforceability?

The enforceability of a restrictive covenant is not solely dependent on its age. Older covenants may sometimes be deemed obsolete due to changes in the surrounding area or society. However, they can remain enforceable if they continue to meet legal criteria and serve a clear, ongoing benefit.

Can restrictive covenants be enforced against new owners who were unaware of them at the time of purchase?

Yes, restrictive covenants can be enforced against new owners. they can be enforced even if they were unaware of the covenant at the time of purchase.

What role do local planning authorities play in the enforcement of restrictive covenants?

Local planning authorities may enforce restrictive covenants if the covenant’s terms align with local planning policies or if the covenant was established as part of a planning agreement. However, the primary enforcement responsibility lies with the person with the benefit or their successors in title.

Is it possible to challenge the enforceability of a restrictive covenant in court?

Yes, property owners can challenge the enforceability of a restrictive covenant in court. Challenges may be based on the argument that the covenant no longer serves its original purpose, is obsolete, or excessively restricts the use of the property without providing substantial benefits.

How can Expert Commercial Law assist?

When dealing with restrictive covenants on land, it is important to seek legal advice and assistance. A property law solicitor can ensure the right approach is being taken and that applications are being made correctly.

Please note we are not a firm of solicitors. We maintain a panel of trusted and regulated legal experts. If you contact us in relation to a commercial law case, we will pass your case on to a panel firm in return for a fee from our panel firms. We will never charge you for passing on your case to a panel firm.

Each solicitor is vetted before being allowed onto our panel, and we only select the best in the business. All of our solicitor firms are authorised and regulated by the Solicitors Regulation Authority (SRA).

Our panel solicitors also help with commercial claims, such as breach of contract, winding up proceedings and statutory demands.

Please contact us using the form below to speak to a solicitor on our panel.