Restrictive covenants are legally binding conditions written into a property’s deeds that dictate what the landowner can and cannot do with their property.
A restrictive covenant obliges the covenantor (the property owner) to refrain from certain actions or restricts the use of the land for specific purposes. Some common types of restrictive covenants that can affect land include:
- Prohibition against causing a nuisance or annoyance to neighbouring properties.
- Restriction on constructing additional buildings on the property.
- Limitation on using the property for business or trade purposes.
- Prohibition against parking caravans on the property.
- Restriction on selling alcohol from the property.
- Limitation on using the property for purposes other than as a private dwelling.
These restrictive covenants are important legal considerations that can impact the use and development of a property.
In registered land, the covenant must always be registered on the title deeds of the property.
Unlike “positive” covenants, the burden of a restrictive covenant is capable of “running with the land,” meaning successive owners or occupiers are bound by the restriction. Positive covenants, which impose an obligation to do something, do not run with freehold land.
For the burden to run with the freehold land, four requirements must be satisfied:
- Negative Nature: The covenant must be negative in nature, such as a covenant not to build on the land or not to use the land for business purposes.
- Dominant and Servient Tenement: Both the covenantee (the party who benefits from the covenant) and the covenantor (the party bound by the covenant) must own an estate in their respective tenements.
- Covenant Benefits Land: The land must benefit from (i.e., be “touched and concerned” by) the covenant. A benefit must impact either the value of the land or the method of its occupation or enjoyment.
- Intent for the Burden to Run: The burden of the covenant must have been intended to run with the land. A covenant that is personal to the covenantor, such as one tied to an individual or company, will not run with the land and will end with the covenantor.
Enforcement
The primary remedy for a breach of a restrictive covenant is an injunction. The legal owner of the land intended to benefit from the covenant can seek enforcement against the breach, which may apply to successive owners and occupiers.
Examples
- Triplerose v Beattie (2020) UKUT 180: The use of a residential flat advertised for short-term occupation through internet booking agencies like Airbnb or Booking.com breached a tenant’s covenant not to use or permit the flat for any purpose other than as a private dwelling/house for occupation by one family at any one time.
- Nemcova v Fairfield Rents Ltd (2016) UKUT 303 (LC): The use of a flat for short-term lettings via internet booking agencies was deemed a breach of a covenant prohibiting its use other than as a private residence.
- Davies v Dennis (2009) EWCA 1081: There was found to be a breach of covenant against causing nuisance and annoyance when an extension was built near a neighbouring boundary. The construction of three-story buildings obstructed the claimant’s view of the River Thames, causing annoyance.
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Restrictive covenants are a nuanced area of land law. If you require expert legal advice on covenants affecting your land or any property you intend to purchase or develop, please feel free to reach out to us. We’re here to assist you.
