Most properties are subject to restrictive covenants. We take a look at the law surrounding them and whether they can be enforced.
Restrictive covenants require landowners not to carry out certain acts in respect of their property. For example, not to construct anything forward of the building line, not to park a caravan on the property or not to plant trees in the front garden. In addition, a property could be subject to positive covenants, such as an obligation to contribute towards the maintenance of a shared pathway or boundary walls.
Newbuilds in particular usually have a substantial number of restrictive covenants included in the document transferring the property to the first owners. The intention is to keep certain standards on the estate that will benefit all property owners. By signing the transfer, the buyers are agreeing to comply with the covenants, which will also apply to any future purchaser.
When you buy a property, your solicitor will ask the seller’s solicitor whether the seller is aware of any breach of the covenants that exist.
Who can enforce a breach of covenant?
The party who has the benefit of the deed of covenant has the authority to enforce it. This could be the developer, if the property is a newbuild, or an organisation that takes over the developer’s rights and responsibilities.
To be capable of being enforced, a restrictive covenant cannot be:
- Assigned to a third party
- Unclear or ambiguous
- Against competition law
- Contrary to public policy
If you are living on a new estate and you are aware of a breach of covenant, you can ask the person in question if they are able to rectify matters. If they do not, you could write to the developer and request that they deal with the issue. It will be in their interests to do this if they are still selling properties within the development.
Restrictive covenants are also common in leases to ensure that flat owners behave in a way that is not detrimental to others at the property. Examples include not owning pets, not playing musical instruments or loud music after a specified time and not doing anything that could invalidate the buildings insurance.
The lease will usually require the landlord to enforce restrictive covenants if they are breached. This means that you can contact the landlord to make them aware of a breach and ask them to take action to remedy matters. Where a flat management company has taken on the freehold, it will have the power to enforce the restrictive covenants contained in the leases.
Dealing with a breach of covenant
The law surrounding restrictive covenants is complex, so it is recommended that you seek legal advice if you wish to enforce a covenant.
Disagreements over property can quickly escalate, so it is advisable to try and deal with matters by way of discussion and negotiation wherever possible. An expert property lawyer will be able to explain your rights and can, where necessary, write a letter on your behalf to try and help resolve matters.
Contact us
If you would like to speak to one of our expert property lawyers, ring us on 0333 305 5189 or email us at info@lpropertylawyers.co.uk
