Restrictive Covenants

So, you’ve paid your deposit, collected the keys and moved into your lovely new home. What to do first? Install that white picket fence you’ve always wanted? Maybe buy some chickens to give you some eggs for your Sunday morning soldiers? Or fit a few security cameras around your house to keep an eye on the van parked on your drive? Because, after all, you will be able to park your van on your drive, right? Right?

Perhaps not. Buried in the title deeds could be a list of things that you are not allowed to do – known as restrictive covenants.  Restrictive covenant restricts a property owner from doing certain things, including building on or using the property for particular purposes. It could include any of the activities mentioned above and many others, including parking your van on, or outside, your own property. This was the issue a utility worker in Colchester recently encountered when looking to purchase a new home. Having found a house he wanted, the utility worker realised that the housing developer had put a restrictive covenant on the property banning vans, boats and caravans from being parked either on the driveway to the property or on the road outside the property. Knowing the restrictive covenant existed, the utility worker pulled out of the deal.

While the MP for Colchester, Will Quince, stated that the ban ‘seemed unreasonable’, such restrictive covenants are not particularly rare. Housing developers and property management companies are often keen to enforce covenants on their properties in order to maintain an attractive environment while properties are being sold.

But it’s not just larger developers using restrictive covenants to get their own way. An example in 2004 saw a couple build a second home at the bottom of their garden, move into it and sell their original home. They didn’t want anything blocking their view, which saw them looking down a valley onto a church, so they placed a restrictive covenant on their original home, banning anything that would block that view. While the next owner was made aware of the restrictive covenant, the person who bought the house afterwards, was not. Restrictive covenants do not expire when the original beneficiary sells up and can in fact stick with a property for hundreds of years. In this case, the second owner ended up owning a property that he was unable to extend because to do so would block his neighbours’ view.

Can you be released from a restrictive covenant and, if so, how? The short answer is yes, although it’s not particularly easy. The easiest way to get around a restrictive covenant is simply to speak to the neighbour or developer who has the benefit of the covenant and ask if its terms can be modified. If the neighbour or developer refuses and you need to try a different tact, things might be a bit trickier.  The Upper Tribunal (Lands Chamber) can dismiss or modify restrictive covenants, usually on the grounds that they are obsolete or impede reasonable use or development. Equally, the County Court can discharge or modify a covenant that it believes to be unenforceable.

The best approach is to be sure what, if any, restrictive covenants apply to your prospective property before buying. If the dream is to come home to your washing slowly drying in the breeze on your lawn, or the security provided by the blink of a security camera, or, more simply still, you just want to be able to park your van on your drive, then be sure you can, before you buy.

James Farad

James Farad

James Farad
Trainee Solicitor
Commercial Property
JFarad@LawBlacks.com
0113 2279245
@JamesFLawBlacks

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