Can You Remove A Restrictive Covenant?
Timms Conveyancer, Shelly Pill discusses what a restrictive covenant is and whether you can remove one in her latest blog…
What Is A Restrictive Covenant?
A restrictive covenant is an agreement made between a seller and buyer when land is sold. These are restrictions imposed by the seller on the buyer and their successors in title, restrictive covenants are forever binding as they run with the land.
Common examples of covenants could include:
1. Not to erect any building on the land other than to be used as a private dwellings;
2. No trade business or manufacturing will be carried out on the land;
3. No advertising or satellite dishes displayed at the property.
There are more obscure covenants such as:
1. Property must never been used for gambling purposes;
2. Must not keep chickens or livestock on the land;
3. Must not display your washing in a lewd and lascivious manner.
What Can I Do To Remove A Restrictive Covenant?
You could contact the original party with the benefit of the covenant to ask if they would release it, but in some instances this person may be untraceable. You can apply to the Lands Chamber of the Upper Tribunal to modify or discharge restrictive covenants but this process can be expensive, time consuming and you may not be successful.
If you are buying or selling a property where a covenant has been breached for more than 12 months with no complaint, you can usually obtain indemnity insurance.
The insurance policy will include various types of cover but could include cover for reasonable professional and legal fees that an enforcement of breach of restrictive covenant legal case could bring, cover for any settlement costs, cover for damages, compensation, cover for altering the property in accordance with the covenant. You would need to read over the policy to fully ensure you have the right level of protection.
The insurance continues indefinitely and can be passed to future purchasers of the property although, you may need to increase the limit of indemnity to reflect the current market value upon resale.
If a covenant has been breached continuously for more than 20 years, under the most commonly cited case law [Hepworth V Pickles 1900] it is generally argued that if no enforcement action has been taken in that time by the beneficiary of the covenant, it will be unlikely to succeed due to the longevity of breach.
How Can Timms help?
If you require any further assistance relating to the sale and purchase of property or would like to get a free quote, please contact myself or one of the team on freephone 0800 011 6666 or via email s.pill@timms-law.com.
October 2023