Understanding Restrictive Covenants - by Rebecca Gunn
As a solicitor working predominantly in Residential Property, I come across a lot of Restrictive Covenants. I am often asked by my clients;
‘What is a Restrictive Covenant?’ or;
‘It is my Property, why am I not allowed to just paint my fence or put up a conservatory?’ or;
‘What is the simplest and cheapest way around a Restrictive Covenant that I have breached?’.
What is a Restrictive Covenant:
A Restrictive Covenant is something that is written into the Deeds of your property which determines what an owner can and cannot do to their property. Sometimes, there is a condition that attaches itself to a Restrictive Covenant which will allow you to do something to the property, but only with the Developers consent - for example ‘do not build a conservatory without the Developers consent’.
I can understand the confusion and frustration that attaches itself to many of the Restrictive Covenants I come across on a daily basis. My personal favourite is, ‘not to carry out any trade or business which is a nuisance or annoyance to the owners or occupiers of the adjoining neighbouring property and particularly shall not keep pigs or permit to be kept thereon’. I would hope that not keeping pigs in your garden would go without saying, but clearly it was needed for some reason!
Restrictive Covenants are put in place to give properties some form of unity, tranquillity within a neighbourhood and to protect the aesthetic appearance of a group of properties. However, they all stand the test of time, and clearly keeping pigs in one’s back garden may not be so popular these days! The bottom line is, any Restrictive Covenant is set out and written with good intentions.
When considering making alterations to your property, it is always a good idea to check your Title Deeds to make sure you do not require consent from a third party. You should be aware that Restrictive Covenant consent is not the same as getting consent from the Council. This means you may require Planning Permission, Building Regulations and Covenant Consent to build your extension for example.
If you are concerned that you may have breached a Restrictive Covenant in any way or that the seller of the dream house you are purchasing has - fear not, there are options:
1. You could take out an Indemnity Policy which would protect you against any costs of legal proceedings if the beneficiary of the Restrictive Covenant takes you to court for non-compliance; or
2. You or the seller of the property could write to the beneficiary of the Restrictive Covenant, e.g., the Developer, and apply for Retrospective Consent.
If you believe you are in breach of a Restrictive Covenant or if you are looking to alter your Property in any way that you think it will breach a Restrictive Covenant, I would recommend you seek legal advice.