A Restrictive Covenant is an obligation based upon the owner of land to stop him from using that land for a specific purpose.
In some cases, covenants, unlike simple contractual arrangements between two or more parties, can attach to land and ‘run with the land’ thus binding owners of that land into the future. For this reason, in England and Wales, covenants must be registered against the registered title of land.
A Restrictive Covenant might prohibit a landowner from using land for a specific purpose (such as storing a caravan for example). This is also known as a negative covenant. There are also positive covenants that might require someone to do something specific.
Sometimes a covenant might seem to be restrictive in nature and therefore a negative covenant but actually be a positive covenant and vice versa. For example, a covenant “to use the property only as a residential dwelling” is, on first reading, a positive covenant to use a property a certain way. However, in practice it is actually a restrictive covenant not to use the property for any other purpose than a residential dwelling (a house).
The reason that it’s important to be able to identify what is a positive covenant and what is a negative/restrictive covenant is because not all covenants are always enforceable and the way these covenants pass with a property’s title varies, dependent on whether a covenant is positive or negative.
For a covenant to continue to be enforceable after the original parties have parted with the land involved, both the benefit and the burden must “run with the land”. The rules which dictate whether the benefit and burden run differ depending on whether the covenant is positive or negative. The tests applied to establish whether a covenant is enforceable are set in Equity and Common Law. For more details click here.
Furthermore, there are circumstances where a covenant might become outdated or otherwise unenforceable. In such circumstances under S84(1) of the Law of Property Act 1925, an application may be made to the Lands Chamber of the Upper Tribunal (formerly the Lands Tribunal) to remove or modify a covenant.
In certain cases, it is possible to take indemnity insurance against historic covenants where the underlying issue cannot be resolved.
Related articles:
Download our Free First Time Buyers Guide
Recent posts
Budgeting over the Christmas Period
24 days ago
The most wonderful time of the year can easily turn into the most expensive time of the year. Watching the pennies doesn’t mean that the Christmas festivities have to stop, following a few budgeting tips can mean you still have a special Christmas and don’t go into the new year in debt.
Preparing your home to sell in winter
28 days ago
December is usually a less desirable time to buy as many people don’t want to move over the holidays. However, prospective buyers do start to look at this time. Selling your home in winter may require a bit of extra attention to showcase your property at its best.
We look at why mortgage rates increased following the Bank of England's choice to reduce the bank rate, and should you fix now?
UK 2024 Autumn Budget: Housing
30 Oct 2024
On 30th October 2024 the Chancellor, Rachel Reeves delivered the Autumn budget which we had previously been warned would be “difficult”. Below we have summarised the main housing points.
Talking about money with kids
23 Oct 2024
In an increasingly cashless society, money is an intangible concept for children to grasp. In the days of coins and notes, kids could see money as something physical you require to purchase goods and services.
In order to help teach your children about money, we have listed some tips below;
Labour Autumn Budget Predictions: Housing
18 Oct 2024
The UK’s chancellor, Rachel Reeves will deliver the Labour government’s autumn budget at the end of the month, we take a look at what could be announced in relation to housing.
Recent research from Halifax has revealed the most sought-after locations for first time buyers in Britain.
The data which was taken from the Halifax House Price Index looked at areas outside of London where those looking to purchase their first property were buying. Despite high property prices and increased rates, these first time buyer hotspots have remained popular.
How can I look after my mental health?
7 Oct 2024
Taking care of your mental health means looking after your emotional, psychological, and social wellbeing. There are several ways we can practice self-care that will help to improve our physical and mental health. This can help to reduce our risk of illness, manage stress, and boost our energy levels!
More information
Trusted by
