Purchasers should be aware of covenants affecting freehold land particularly if they intend to develop the land.
Covenants are classified as either restrictive (negative) or positive in nature and what can appear to be a restrictive covenant on the face of it may well turn out to be a positive covenant.
This is important as the benefit and burden of restrictive covenants can run with the land and so bind a purchaser whereas only the benefit of positive covenants can run with the land.
Restrictive covenants as the name suggests restrict an owner’s ability to use the land in some way, for example, not to use it as a public house or for parking purposes. On the other hand a positive covenant will generally impose an obligation to do something on the land that may involve work or spending money such as building a fence.
The Courts will consider the essence of a covenant when considering whether it is negative or not.
A covenant is always enforceable between the original parties as there is a contractual relationship between them. However, when the land is sold there is no longer a contractual relationship and the question of whether the covenant can be enforced will depend on whether the benefit of the covenant has passed to the purchaser of the benefitting land and the burden of the covenant has passed the purchaser of the burdened land.
As mentioned covenants affecting land can prevent the development of the land and it is therefore important to establish whether or not the covenant binds the land. Even where the covenant binds the land it may well be that it can be discharged, varied or released.
Applications can be made to the Upper Tribunal (Lands Chamber), the statutory successor to the Lands Tribunal, if it is considered that the covenant has become obsolete or impedes the reasonable use of the land.
It may also be possible to negotiate for the release or variation of the covenant.
Quinn & Co have experience of dealing with rights of way disputes and if you wish to discuss your case and see how we can help you please contact Joseph Quinn on 01392 248858 or email us at firstname.lastname@example.org
This article does not constitute legal advice. Specific legal advice should be taken before acting on any of the topics covered.