How to Remove a Restrictive Covenant on Land or Property

What is a restrictive covenant?

Restrictive covenants on properties are legal agreements that impose limitations on land use and development. Typically documented in property deeds or titles, these covenants are binding for all subsequent property owners. They serve various purposes, such as preserving neighbourhood character, protecting property values, and maintaining community standards.

Restrictive covenants can prevent certain types of land use land use. They can also dictate the types of structures permissible, materials allowed, and size limitations. Architectural controls often regulate building design, style, and appearance to ensure uniformity within a development or neighbourhood. Maintenance obligations may require property owners to uphold certain standards, such as lawn care or building upkeep.

Moreover, restrictive covenants affecting property can impose usage restrictions, prohibiting commercial activities or limiting certain practices like animal keeping.

In environmentally sensitive areas, covenants may be in place to protect natural habitats or mandate specific conservation measures. It is also worth noting that successors in title are bound by the restrictive covenants that apply to the land, even though they did not originally agree to them.

Failure to comply with restrictive covenants can lead to legal repercussions initiated by other property owners or the homeowners association. Therefore, prospective property buyers should conduct a search on the local land charges register to find any covenants registered against the property.

Examples of common restrictive covenants on property

Land Use Restrictions:

These may dictate the type of structures that can be built on the property (e.g., single-family homes only), the materials that can be used, or the minimum and maximum sizes of structures. This can have an impact on planning permission if a land owner wishes to use their land for other purposes.

Architectural Controls:

These covenants regulate the architectural style, design, and appearance of buildings within a development or neighbourhood to maintain aesthetic consistency.

Maintenance Obligations:

Some covenants require property owners to maintain their properties to a certain standard. This may include keeping lawns trimmed, buildings in good repair, or adhering to specific landscaping guidelines.

Environmental Protections:

Covenants may be put in place to protect environmentally sensitive areas or to ensure that certain conservation practices are followed. These may include limiting tree removal or protecting wildlife habitats.

Homeowners Association (HOA) Rules:

In many planned communities or developments, homeowners are subject to restrictive covenants established by a homeowners association. These may include rules regarding noise, parking, pets, and other aspects of daily life within the community.

How to remove a Restrictive Covenant

There are two main paths to remove, discharge or modify a restrictive covenant on a property. Each have their own advantages and considerations:

Negotiation and Agreement: 

This route is generally preferred for its simplicity and cost-effectiveness. It involves identifying the beneficiary of the covenant, which could be a homeowners association (HOA) or neighbouring landowners impacted by the restriction. Here, open communication is key. You can approach the beneficiary and try to convince them to agree to have the covenant removed through a legal document called a Deed of Release.

Be prepared to present a compelling case, especially if the change you desire offers significant benefits to you. Perhaps you have a well-maintained historic property that a restrictive covenant on paint colours unfairly limits. Offering compensation to the beneficiary can also incentivise them to agree, especially if the change brings minimal detriment to their property value or enjoyment.

Applying to the Upper Tribunal (Lands Chamber):

 If negotiation proves unsuccessful, this formal process offers an alternative. The Lands Chamber of the Upper Tribunal holds the authority under Section 84 of the Law of Property Act 1925 to remove or modify restrictive covenants. They will consider specific criteria to determine the validity of your request. Here are some factors that might work in your favour:

Obsoleteness: 

Can you demonstrate that the original purpose behind the covenant is no longer relevant? For instance, a covenant restricting antenna heights might be deemed obsolete in today’s age of satellite internet.

Unenforceability: 

Is it impossible to identify the beneficiary, or do they lack the legal right to enforce the covenant? Perhaps the originally designated HOA is defunct, or the covenant itself contains ambiguities that render it unenforceable.

Detriment: 

Can you argue that the covenant unfairly restricts your ability to use your property without providing any real benefit to the surrounding area? For example, a covenant preventing homeowners from building small guesthouses might be deemed unreasonably limiting in a neighbourhood with ample tourism potential.

Be aware that removing a restrictive covenant can be a lengthy and involved process. It typically takes between 18 and 24 months to complete. In situations where it’s not possible to remove a restrictive covenant, you may be able to obtain indemnity insurance to protect against any potential losses arising from the covenant.

How can Expert Commercial Law assist?

If you have a restrictive covenant on your land, residential or commercial property, you may wish to seek legal advice from a property dispute lawyer.

If you have any queries or want to take legal action on removing a restrictive covenant on a property, then our panel of solicitors can assist you. They will provide you with practical advice and assistance in the most cost effective and timely manner.

All of the commercial dispute solicitors on our panel have experience and expertise surrounding restrictive covenants. 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 solicitors also help with other commercial claims, such as breach of contract and CCJ removal.

Please note we are not a firm of solicitors; however, 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.