Many homeowners only become aware of a restrictive covenant once they start planning changes to their property.
A restrictive covenant is a condition attached to land that limits how a property can be used.
They are more common in the UK than most people realise, with some estimates suggesting that up to 79 per cent of registered freehold titles are subject to one or more restrictions.
Examples of restrictive covenants
Some covenants are perfectly reasonable, while others are decades old and no longer reflect how the area or property is used today.
The most common ones we see are restrictions on:
- Altering the appearance of the property
- Building extensions or additional structures
- Parking certain types of vehicles, such as caravans or commercial vans, either on the drive or on the road nearby
- Subdividing the land or building additional dwellings
- Using the property for business purposes
Many of these covenants date back to when estates were first developed and were intended to preserve the land’s character or use.
How do you find out if there is a restrictive covenant?
Restrictive covenants are usually set out in the property’s title documents. If your property is registered, it should appear on the title register held by HM Land Registry.
Although covenants are often flagged during the conveyancing process, they can be overlooked or misunderstood at the time of purchase, particularly if they don’t seem immediately relevant.
If you are planning to sell or make changes to your home, like installing a driveway or adding an annexe at the bottom of your garden, it’s always best to double-check whether you have any covenants that could impede these plans.
Who can enforce a restrictive covenant?
Only the person or organisation that benefits from the covenant can enforce it.
In most cases, this is the original developer or the owner of neighbouring land. However, it can sometimes be challenging to identify who still has the benefit, especially when the land benefiting from the covenant has been sold several times or the original developer no longer exists.
That does not automatically mean the covenant cannot be enforced, but it can make enforcement a little more complex.
If it is unclear who has the benefit, tracing this through historic title documents is often necessary.
What can you do if a covenant affects your plans for your home?
If a restrictive covenant is preventing you from doing what you want with your property, there are several possible options, depending on your circumstances.
You may be able to approach the person with the benefit of the covenant directly to ask for consent or a formal release. This can sometimes involve a one-off payment.
If consent cannot be obtained, either because you cannot locate the enforcer or they refuse permission, you can apply to the Upper Tribunal to seek modification or discharge of the covenant.
The Tribunal will look at factors such as:
- Whether the covenant still serves a useful purpose.
- Whether its removal would cause harm to others.
- How long the covenant has been in place and whether it has been consistently enforced.
- Whether the restriction prevents reasonable use or enjoyment of your property.
In some situations, particularly where a covenant has not been enforced for many years and the area has changed significantly, it may be considered obsolete.
Every case is different, so it’s important to get advice to understand the options and decide the best way forward for your situation.
What happens if you breach a restrictive covenant?
Breaching a restrictive covenant can have serious consequences, even if the breach was unintentional.
If the covenant is enforceable, the person with the benefit may seek an injunction requiring the breach to be undone.
For instance, if you’ve built an extension on your property, you may be forced to knock it back down.
This can be far more costly than addressing the issue beforehand.
Where a breach is deliberate, the risk of enforcement is often higher, particularly if neighbours object or feel affected. Financial compensation may also be sought in some cases.
Even where enforcement action seems unlikely, carrying out works in breach of a covenant can cause problems when you come to sell the property, as buyers and lenders may be reluctant to proceed if there is a risk they could inherit liability.
Get assistance with restrictive covenants on your home.
Restrictive covenants are best dealt with at the earliest possible stage, ideally before any work begins.
If you’re unsure whether a covenant affects your property or your plans, getting advice early can help you decide the best way forward. Get in touch with our team for support.