Who can enforce Restrictive Covenants?

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When buying registered land or property you can check whether it is subject to any restrictive covenants. Details of any restrictive covenants will be set out in the Charges Register of the office copies for the title number of the property or land. It will set out briefly details of any acts or activities that cannot be done on the land or property.

Restrictive covenants are usually imposed by a seller who is retaining land or property nearby and wants to control the activities that can be carried out on the land sold for example by restricting any building or structure being erected on the land sold.

A restrictive covenant is effectively a private agreement between two parties (the seller and the buyer) affecting their respective parcels of land. As such only the parties to the agreement would normally be able to enforce it.

However, if the restrictive covenant is intended to bind the parties’ successors in title then both the benefit and burden of the covenant must comply with certain rules at common law or in equity in order for it to “run with the land” and bind future owners.

At common law only the benefit of a covenant will pass provided that certain requirements are met whereas in equity the burden can run provided certain conditions are met. The benefit of a covenant will run in equity provided it actually benefits the land and it was intended by the original parties for the benefit to run.

Should a covenant run with the land then successors in title can enforce it should it be breached. If a restrictive covenant is breached then the usual remedy is to seek an injunction to stop the breach.

Often developers with land affected by restrictive covenants can have the covenant removed by seeking the permission of the landowner that has the benefit of the covenant or by applying to the Upper Tribunal to have any restriction on that land cancelled or modified.

The most common grounds for the Lands Tribunal agreeing to discharge or modify the restriction is that the restriction is obsolete due to the change in the nature of the neighbourhood since the time it was originally imposed. Alternatively that the restriction prevents the reasonable use of the property and modification would not result in those entitled to the benefit of the covenant losing something that provided a practical benefit of substantial value and money would be an adequate compensation for any loss suffered.

It should be noted that if a breach has continued for a long enough period without any objection being raised, it may be regarded as having been abandoned under the principle of estoppel.

Should you wish to enforce a restrictive covenant in favour of your land or wish to apply to the Upper Tribunal to have a restrictive covenant affecting your property or land modified or cancelled please contact Joseph Quinn on 01392 248858 or email us at mail@quinnlaw.co.uk

This article does not constitute legal advice. Specific legal advice should be taken before acting on any of the topics covered.

 

 

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