What is a Restrictive Covenant?

Restrictive covenants are rules or conditions written into title deeds which dictate what you can and cannot do with a property.

It is a common misconception that you can do what you like with your property (subject to planning and building regulations) and people often forget about or are not aware of the existence of restrictive covenants lurking within their title.

So what does that mean?

Restrictive covenants, unlike positive covenants, “run with the land” and bind future owners of the property meaning that a restrictive covenant entered into by the first owner of your house with the original builder, would still bind you as the current owner.

The party with the benefit of the covenant would be entitled to take enforcement action against you if you breached a restrictive covenant. This could result in an injunction. (being forced to reinstate the property to how it was prior to the breach) Or damages (a sum of money paid as compensation).

Are there different kinds of resrictive covenants?

There are many kinds of restrictive covenants but some of the most common for residential properties are:

• You must not to alter the property without consent
• Not to use the property other than a private dwellinghouse for one family
• You must not to do anything that may be a nuisance or cause annoyance to the neighbouring properties
• Not to carry on a trade or business from the property.

What is a restrictive covenant breach?

For some people, it is easy not to breach a restrictive covenant. However, if you wanted to buy a house with the intention of running your business from home, you could be in breach of covenant. You may want to extend the property or work on cars in the garden; both these could be prohibited by a restrictive covenant.

Do all properties come with a restrictive covenant?

Some properties carry a long list of restrictive covenants, particularly new build properties. Developers will want to ensure that the owners of the first houses sold do not do anything with their properties that may harm the chances of selling the remaining houses. Restrictive covenants are not limited to new build properties.. Many older properties are also burdened by restrictive covenants. In some instances, if the party with the benefit of the covenant cannot be traced or, if it’s a company, has ceased trading; a breach of restrictive covenant may cease to be enforceable. You should do your research prior to breaching a covenant.

It is possible to have covenants modified or released but the process can be long and expensive.

When purchasing a property it is imperative that you check any restrictive covenants that apply. If the existence of the covenant is going to affect your use or enjoyment of the property you may think twice about purchasing it. Breaching a restrictive covenant can be very costly. So being mindful of the covenants prior to purchase could make all the difference.

By Katie Holmes,

October 2018

If you would like to talk to Katie about the purchase or sale of a property you can contact her on 01283 214231 or drop her an email to email to k.holmes@timms-law.com