A restrictive covenant is contained in the title to a property that limits what the owner of land or lease can do with the property. They are intended to enhance the property or developments by controlling development.

Developers of land often use restrictive covenants when they are building new homes and impose restrictions on use of the properties which may include a provision restricting construction to single-family dwellings, erection of further buildings such as garages, extensions or conservatories and internal or external alterations such as removal of walls without the consent of the developer or their successor in title, There may be a variety of other restrictive covenants that seek to control the way the development looks and is maintained.

Often property owners confuse the consent of planning permission as being the only matter which needs to be dealt with when applying for the erection of an extension or conservatory for example and do not realise that a restrictive covenant in the title to a property is a completely separate issue. Consent should be sought from the party with the benefit of the covenant and not the local authority. Therefore, it is essential that when purchasing property, a buyer should obtain good quality legal advice to ensure that these aspects are fully covered and the implications of any breach explained.

When the owner resells a property, the new owner will take the property subject to the restrictive covenants, because the covenants are said to “run with the land.” Therefore, if a breach of covenant has occurred, the new owner will be responsible for that breach irrespective of whether they caused it and the person who has the benefit of the covenants, which could be an adjacent property owner, may apply to enforce the restrictions through the Court system against the current property owner.

If you would like advice on the subject, please contact James Matthews or Tracey Freeman.