What is a Restrictive Covenant
A restrictive covenant in relation to a residential property is a binding agreement which prevents a property owner from certain acts, or requires the property owner to carry out certain actions in relation to the property.
The Common Types of Restrictive Covenants
Restrictive Covenants in Leases
If the property is affected by a lease, there will be Restrictive Covenants which are usually found under a heading ‘Covenants.’ Common restrictive covenants in a lease include:
Not to cause nuisance to your neighbour
Not to remove any internal walls
To repaint the internal walls of the property in a specified number of years
Leaseholders generally imposed Restrictive Covenants in Leases to ensure that the property remains in good repair, and to ensure that all residents in a block of flats can live together peacefully.
Restrictive Covenants regarding Residential Property
Often a property will be affected by Restrictive Covenants with regards to the land such as:
Not to build or construct any buildings on the property
To build and maintain a fence of a certain height
Not to use the building for any business or trade
Often these Restrictive Covenants ‘run with the land’ and generally bind any successive land owners unless the terms of the covenant state otherwise.
Who does a Restrictive Covenant apply to?
Each Restrictive Covenant is different and it is important to read its specific terms. In effect when a purchaser signs a contract to purchase a property they are agreeing to abide by the Restrictive Covenants contained in the Contract. The Restrictive Covenant will bind the land owner to its terms unless the clause specifically states a period of time which it is to end, or otherwise.
How can I find out if my land is affected by a Restrictive Covenant?
If a property has been registered with the HM Land Registry it is possible to contact the Land Registry specific to the area and request a copy of your Registered Title for a fee. It is also possible to order a copy of the Registered Title onwww.landregistry.gov.uk also for a fee. When a property is registered, the Land Registry creates a Title Document which contains all the information the Land Registry holds regarding the property.
Under the heading ‘Property Register’ the details of the property are entered, and often if the property is affected by any Restrictive Covenants their details are recorded here. The entry may also refer to another document such as a Transfer or a Deed of Contract. These were the original Title Deeds which contained the Restrictions. If the title states ‘Copy in Certificate’ this means that the Land Registry has a copy on file of the entire document which a copy of may need to be obtained to understand the Restriction completely. Sometimes there are many Restrictive Covenants which apply to the property and are not listed in the title document, in these cases contact the Land Registry to obtain a copy of the document the covenants are contained in.
The entry in the Property Register may also refer to specific colours on the Title Plan, in which case the Restrictive Covenant will need to be read alongside the plan which can be requested from the Land Registry. This sets out a plan of the land and will show the specific area which the covenant is referring to. Sometimes these covenants can be complex and require a detailed plan which will be registered with the Land Registry using the same title number which is recorded at the head of the title document.
Any Restrictive Covenant regarding finances will be recorded in the Charges Register. These are often requested by mortgage lenders to ensure that the property cannot be sold without their consent, therefore ensuring that the loan is repaid.
If the Land Registry and they cannot locate the title documents it may be that the land has not been registered. This is particularly common with land purchased prior to 1990 because compulsory land registration was not applied until this date. In this case it is important to locate as many as the original Deeds as possible. When reading through these Deeds there is often a specific section with the heading ‘Restrictive Covenants’, or it can be found in the paragraphs relating to the details of the property. They will usually contain the words ‘Restrictive Covenants’ and often are listed, for ease of reference.
Complying with a Restrictive Covenant
If you purchase a property with a Restrictive Covenant you are entering into a legally binding Agreement to comply with its terms. If you fail to comply with the terms of the Restrictive Covenant, the person who the Agreement is with will be able to take action against you. For example, if you breach the Restrictive Covenants in your lease, your Landlord may be able to terminate your lease or fine you.
If the Restrictive Covenant applies to your property or land, any action taken against you would depend on the terms of the covenant. For example, if you live in a Council home and the Council has entered Restrictive Covenants onto the title then it is possible that the Council could take you to Court for breach, impose a fine or terminate the Agreement. Sometimes it is possible for your neighbours, or previous landowners to take action against you through either a fine, or court proceedings. Therefore it is important to be aware of these Restrictive Covenants, to understand them and if you have any queries, contact your solicitor for advice.