When purchasing a home, you should be aware of restrictive covenants affecting the property, to avoid costly mistakes. At Emery Johnson Astills, we will ensure that you know exactly what you can and cannot do with your property.
What is a restrictive covenant?
A “Restrictive Covenant” is an agreement in a deed which restricts the use of land. The deed or conveyance transferring the property may contain covenants preventing the new buyer from doing certain things with the property. For example, the restrictive covenant may state that you are ‘not to erect a garage within your boundaries’. There is always one party who benefits from the restrictive covenant and one party who has the burden.
What if you breach a restrictive covenant?
If you breach a restrictive covenant, the person who has the benefit of the covenant may want to obtain an injunction to prevent breach or claim monetary compensation. If an injunction is obtained, the courts may stop you from carrying out the work. For example, if the restrictive covenant states you cannot erect a new fence, and you begin erecting a fence, an injunction will force you to cease all building work. If the building works had already been completed, the court may order for the fence to be demolished. To prevent a breach please speak to your solicitor at Emery Johnson Astills who will explain to you how to avoid facing an injunction or paying out compensation.
Can you discharge or modify a restrictive covenant?
A restrictive covenant can be modified or discharged although this process can be very lengthy and costly. The owner of the land which is subject to the burden of the restrictive covenant can apply to the Upper Tribunal. This application can be made on a number of grounds and the most popular ground is ‘the continued existence of the restriction would impede some reasonable user of the land for public or private purposes’.
In practice, you can speak to the land owner who benefits from the restrictive covenant directly. If the land owner agrees to the removal of the restrictive covenant, you can both sign a deed of release which would release you from the burden of the restrictive covenant. In cases where the owner of the land can’t be traced, the burdened land owner can take out indemnity insurance which offers protection in the case of any enforcement.
Our Emery Johnson Astills Conveyancing Team in Leicester and Loughborough are happy to assist if you are buying or selling a house.
If you require assistance or further information, please contact our Conveyancing Team on 0116 2554 855 (Leicester), or 01509 610 312 (Loughborough).