If you’re a land owner, you’ll want to know the ins and outs of what you can do with your land. The same is true before you consider buying land. Do you know what you can and can’t do with your potential new purchase? If not, then you should, especially if you are buying a piece of land with plans in mind, such as building something, or using it for a specific purpose.
In this article, we’ll discuss restrictive covenants, which you should know all about before you buy a piece of land.
What is a restrictive covenant?
A covenant is a solemn promise to engage in or refrain from a specific action. A restrictive covenant is a promise that you will not, under any circumstances, do something. When we look at land specifically, this might include promising not to build on a piece of land, or use it for another specified action.
Unlike a positive covenant, a restrictive covenant can ‘run with the land’, which means any restrictive covenants agreed on a piece of land long before you bought it are binding, and you must obey them.
The three types of covenants
Covenants restricting the use of land can be divided into three separate types:
- covenants imposed for the seller’s benefit are personal to the seller and cannot be enforced by anyone else unless assigned by that seller,
- post-1925 covenants imposed by an owner of other land where the land sold formed a part are intended to protect or benefit the unsold land – so where a landowner sells half of their field and a restrictive covenant prevents building on that field to preserve what remains in ownership of the seller.
- covenants imposed by a seller as part of a sale of land to various buyers who, along with their successors, are expected to be bound by the covenant. These are usually found in building schemes where it was the sellers intention that various buyers of a defined area of land should be able to enforce covenants against each other.
Restrictive covenants are most commonly used to:
- stop houses being used for business purposes,
- stop non-domestic animals from being kept on land (E.G chickens or pigs),
- stop building on land without the express permission of the person who owns the land the covenant was created to protect.
If you are worried about how a covenant might impact your desire for land you own or are intending to purchase, you should consult a property lawyer.
JMR Solicitors can help with this. Email email@example.com, or call 0161 491 3933, and one of our specially trained staff would be happy to speak with you.
Can I get out of a restrictive covenant
You can potentially contest a restrictive covenant, as there are specific requirements to bind subsequent owners of a property or a piece of land to an existing covenant, but this is incredibly difficult and complicated. You will most certainly need a property lawyer to assist you with this.
It’s complicated, but the covenant must actually benefit the other land by protecting the value of it, or the capacity of its owners to enjoy it. This must be the case at the current time, not just at the time the covenant was created. So perhaps a restrictive covenant was put in place to restrict building because a family lived on the land beside the plot and this would impact their quality of life. If that home has since become derelict or been destroyed, the covenant could be void.
If other land does not benefit from the covenant, it is not enforceable.
The original covenant arrangers must have made it clear that their intention was that the burden of the covenant would remain with the land and pass to new owners. This can only happen if the covenant was expressed with the intention of benefitting adjoining land. If this is not the case, the covenant is regarded as a personal agreement between original parties, and the covenant will not pass to new owners.
As a buyer, you must be given notice of a covenant in order for it to exist. It must be registered in the title to the property at HM Land Registry, not be ambiguous, not be prohibited by competition law, or be contrary to public policy.
This is incredibly complex, but there is every chance you can determine a restrictive covenant you have been told about is not actually enforceable, so seek legal advice.
What happens if I break a restrictive covenant?
If you breach a covenant or you threaten to breach one, the person protected by the covenant can seek an injunction to stop it.
The court can order you to pay damages in lieu of an injunction, which comes in the form of compensation and damages. You might also be ordered to pay all legal fees.
It is not worth the risk. Seek legal advice before you think about breaking any restrictive covenants.