Restrictive covenants: why you shouldn’t ignore them

What is a restrictive covenant?

Whether your home is freehold or leasehold, it’s almost inevitable that it will be subject to one or more restrictive covenants. However, as they tend to affect us so infrequently, it’s very easy to forget their existence.

A restrictive covenant is a private agreement between owners of land, in which one party agrees to restrict the use of their land in some way for the benefit of the other party’s land. This agreement binds the land, not the landowner, and is incorporated into the property’s title deeds. As the agreement ‘runs with the land’, it continues even after the original parties have sold and moved on.

Common restrictive covenants

The passage of time may lead to an assumption – which could well be wrong – that a restrictive covenant is of its time and is now obsolete. Common examples of nineteenth century restrictive covenants we have encountered include:

• no airing of undergarments in a communal garden;
• not acting in a lewd and lascivious manner;
• not to run a slaughterhouse, tallow chandler, or soap-boiler;
• a ban on keeping pigs, poultry or pigeons;
• a prohibition on playing the violin.

Restrictive covenants that will be problematic to you as a homeowner are ones that restrict one or more ways you would like to use the property, or which prevent you from altering the property itself. They are very common, particularly on newer properties. Common ones include prohibitions on:

• altering or modifying the property;
• parking caravans or commercial vehicles on the property;
• erecting a satellite dish;
• causing a nuisance or annoyance to neighbouring properties;
• operating a trade or business from the property.

Are restrictive covenants enforceable?

The simple answer is yes, restrictive covenants are potentially enforceable. But their enforceability depends on a variety of factors, including:

• Is the covenant negative? In other words, it says the landowner must not do something. Typically, positive covenants do not run with the land.
• Was the covenant taken to protect land retained by the person who originally benefitted from it?
• Was the burden meant to ‘run with the land’?
• Does the covenant genuinely benefit land owned by the person seeking to enforce it?
• Was the covenant correctly drafted or constructed? In other words, is it ambiguous? Is there certainty over which land was affected by the covenant? Did it cover land and buildings? Is it possible to determine precisely which land is subject to the restrictive covenant? Were future events anticipated?
• Has the covenant been correctly registered?

Any or all of these factors can affect the enforceability of a restrictive covenant.

What should you do if you have breached a restrictive covenant?

Typically, disputes arise as a result of:

• a failure to check whether a restrictive covenant is in place; or
• knowingly breaching a restrictive covenant on the assumption that it’s unenforceable; or
• knowingly breaching a restrictive covenant in the hope that the person with the benefit of the covenant will not seek to enforce it.

Whatever the reason you have breached a restrictive covenant, it can prove expensive. Potentially, you could face an injunction, damages, legal costs, and the cost of rectifying your breach. It’s therefore crucial that you never simply assume that a restrictive covenant is unenforceable, or that the person with the benefit will turn a blind eye. Always take legal advice first. And if you are alleged to be in breach of a restrictive covenant, take advice immediately.