What is a restrictive covenant?
A restrictive covenant is frequently found in relation to the use of residential property. A restrictive covenant is a clause preventing a property owner from certain acts in relation to the property, or otherwise restricts their use of the property in some way.
This is for the benefit of someone else – usually a neighbouring property. However, in practice it can be very difficult to identify who has the benefit of a restrictive covenant. Typical restrictive covenants include:
- Not to build or construct any buildings on the property;
- Not to build walls or erect fences above a certain height;
- Not to use the building for any business or trade;
- Not to erect any signages to the front of the property.
Under land law, restrictive covenants ‘run with the land’. This means they bind all successive purchasers/owners of the property (unless the terms of the covenant state otherwise). It is possible for a restrictive covenant to be discharged by agreement with the person who has the benefit of the restrictive covenant. If necessary, an application can be made to the Lands Tribunal for an order discharging or modifying the restriction; for instance, if the restrictive covenant is interfering with the use of the land.
Common types of restrictive covenants
Restrictive covenants in leases
If the property is subject to a lease, there will be restrictive covenants contained within the lease – typically found under the heading ‘Covenants’. Common restrictive covenants in a lease include:
- Not to cause nuisance to your neighbour;
- Not to remove any internal walls;
- Not hang washing over the balcony;
- Not have any pets in the property;
- Not to sublet the premises.
Leaseholders generally impose restrictive covenants in leases to ensure the property remains in good repair, or to ensure that all residents in a block of flats can live together peacefully. All leaseholders within a block will likely be subject to the same covenants so they are all beneficial to each other for the same reasons.
Who does a restrictive covenant apply to?
Restrictive covenants apply to buyers of land that is already subject to restrictive covenants, as well as leaseholders. Buyers of new builds are also highly likely to be subject to restrictive covenants set out in the transfer which will affect their use of the property.
On exchange of contracts, the buyer is effectively agreeing to abide by any restrictive covenants that affect the property they are buying – unless the clause specifically states a period of time after which it is to end.
How can I determine if my land is affected by a restrictive covenant?
For more information on:
- Unregistered land
- What happens if I breach a restrictive covenant?