What is a restrictive covenant on land?

Restrictive covenants in land are promises embedded within property deeds. Restrictive covenants restrict certain uses or activities on the land. These covenants are often established during the sale or transfer of property.

They are designed to preserve the value and enjoyment of nearby properties or the area in general. In England and Wales, the enforceability of restrictive covenants are based on a complex combination of historical legal principles and modern property law, making them a significant point of interest for property owners, developers, and legal practitioners alike.

A restrictive covenant on land can have implications for landowners, especially those seeking planning permission to develop their land. Our network of solicitors are often asked the question “are restrictive covenants on land enforceable?”

Legal action can be taken against those breaching a restrictive covenant, so it is important to seek legal advice.

Are restrictive covenants on land enforceable?

The enforcement of restrictive covenants in England and Wales is grounded in both statutory law and case law.

Historically, the Law of Property Act 1925 laid the foundational legal framework for property rights and transactions. This includes provisions related to restrictive covenants.

Subsequent legal developments and judicial interpretations have further refined the enforceability of these covenants. Key cases, such as Tulk v. Moxhay (1848), established the principle that restrictive covenants could be enforceable against successive owners if certain conditions are met. This case articulated the need for neighbouring land to have benefit of the restrictive covenant, a principle that remains central to the enforcement of restrictive covenants today.

For a restrictive covenant to be enforceable, several key conditions must be satisfied:

Identifiable benefit and burden:

The covenant must confer a clear benefit to one piece of land (the dominant tenement) and impose a burden on another (the servient tenement). This relationship must be clear and specific.

Touching and concerning the Land:

The covenant must relate directly to the land’s use or value, rather than personal obligations of the original parties.

Intention to run with the land:

There must be a clear intention that the covenant is to apply to and bind successive owners, not just the original parties involved in the agreement.

Meeting these conditions ensures that restrictive covenants are not only designed to regulate behaviour. They are also legally capable of affecting successors in title, thereby preserving the intended benefits or protections over time.

Common challenges in enforcement of restrictive covenants

Enforcing restrictive covenants can present significant challenges:

Ambiguity in terms:

Vague or poorly defined covenant terms can lead to disputes over interpretation and applicability.

Changes in land use and surrounding areas:

Evolution in the character of neighbourhoods or changes in public policy can render certain covenants obsolete or inequitable.

Judicial interpretation:

The doctrine of precedent means that past judicial decisions play a critical role in enforcement, yet variation in interpretation can introduce uncertainty.

These challenges underscore the importance of precise drafting and the need for legal advice when creating or dealing with restrictive covenants.

What happens if someone breaches a restrictive covenant?

When someone breaches a restrictive covenant, the person entitled to benefit of the covenant may take legal or enforcement action.

Several legal remedies and consequences may come into play for a breach of the covenant.

The specific outcome often depends on the nature of the covenant, the extent of the breach, and the actions taken by the affected parties. Below is an exploration of the potential consequences and legal remedies for breaching a restrictive covenant:

Injunction

An injunction is a court order that requires the party in breach to cease the prohibited activity. In cases involving restrictive covenants, this could mean an order to stop an ongoing activity that violates the covenant or. In some cases the party in breach could be required to undo changes made to the property. For example, if the breach involves unauthorised construction, the court may order the removal of the offending structure.

Damages

If the breach has caused financial loss to the person with the benefit of the covenant, the court may award damages as compensation. The amount of damages will typically relate to the reduction in the value of the property benefiting from the covenant. It may alternatively relate the cost of restoring the property to its previous condition, if applicable.

Negotiated settlement

Parties often prefer to settle disputes out of court due to the time, expense, and uncertainty involved in court proceedings. A negotiated settlement might involve the party in breach agreeing to modify their use of the property to comply with the covenant, paying compensation, or purchasing a release from the covenant.

Declaration

The court can issue a declaration clarifying the rights of the parties under the covenant. This is particularly useful in cases where there is ambiguity about the application or extent of the covenant.

Can you modify or discharge a restrictive covenant?

Under certain conditions, the Lands Tribunal (now part of the Upper Tribunal (Lands Chamber)) has the power to modify or discharge restrictive covenants.

Parties may apply to the Tribunal if they believe the covenant is obsolete due to changes in the character of the property or neighbourhood, if it impedes reasonable use of the land without securing practical benefits to others, or if the beneficiaries consent to the change.

The Tribunal will consider various factors, including the original purpose of the covenant and whether its continuation is contrary to the public interest.

How can ARC Costs assist?

If you are still asking the question, “are restrictive covenants on land enforceable?” contact us today to speak to a solicitor in our network.

In addition to introducing you to a solicitor, we can also assist in the recovery and negotiation of legal costs in land dispute cases, whether you are the paying or receiving party.

ARC Costs are highly experienced in advising and assisting with costs issues and disputes in different areas of law. As Costs Draftsman and Costs Lawyers, we can assist in your Commercial Litigation Costs issues.

If a costs award has been made, allowing you to recover costs from your opponent, we can assist with preparing a Bill of Costs on your behalf to ensure maximum recoverability. We can also assist in Costs Negotiations and represent you at detailed assessment proceedings which can determine the amount of costs you may be able to recover.

If you have been ordered to pay costs to your opponent, we can assist in disputing costs which may be sought and which you may deem to be excessive and unreasonable. We can do this by way of preparation of  Points of Dispute and also through negotiations to ensure you will only pay for costs which are reasonably incurred and not exaggerated.

Should you wish to discuss your costs query with us, please contact us on 01204 397302 or via email at info@arccosts.co.uk. Alternatively, you can complete our online query form and we will contact you to discuss your query further. We can provide expert legal advice on costs in our free, no obligation initial consultation.

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