Covenants And Controversies: Property Restrictions And Rights In The UK

Sofa with UK flag cushions

Property ownership in the UK comes with certain rights, but also certain restrictions. One of the key restrictions placed on the property is through covenants, which are private agreements that bind owners and restrict how land can be used. Covenants have a long history in English property law and remain widespread today, though their use has also proven controversial at times. This article will examine what covenants are, their history and evolution in English law, key controversies surrounding their use, and the balance struck between property rights and restrictions in modern UK property law.

What is a Covenant?

A covenant is a private agreement made between property owners to restrict the use of land. Covenants bind current and future owners of the land and are attached to the property’s title deeds. The person who benefited by a covenant can sue to enforce it if breached.

Now that we’ve covered what is a covenant, let us explore its practical applications.

Covenants are commonly used to maintain standards on a development. For example, they may prohibit converting homes into flats, restricting alterations and extensions, regulating parking, or requiring garden maintenance. Covenants are also used to manage shared amenities like private roads, sewers and green spaces.

While called covenants, these agreements are legally classified as negative easements. An easement gives someone rights over another’s land, while a negative easement limits land use. Covenants run with the land indefinitely, unless released by deed.

History and Evolution of Covenants

Covenants have been used to regulate land use in England since medieval times. Lease covenants were used by landlords to control tenant land use and subletting. Later, freehold covenants became more common after the Statute of Uses 1535 allowed them to bind future landowners.

Covenants grew significantly after urbanisation in the Industrial Revolution. Terraced housing with shared walls meant greater interdependence between owners. Covenants allowed developers to maintain design standards. The famous Parker Morris standards promoted in the 1960s ensured minimum space standards for public housing.

Two landmark court cases solidified covenants in English law:

  • Tulk v Moxhay (1848) established the enforceability of covenants at law. It set the precedent that buyers take land subject to existing covenants.
  • Halsall v Brizell (1957) confirmed covenants bind successive owners without renegotiation. Developers could create estates binding all future purchasers.

This entrenched covenants into the English planning system. However, controversy eventually arose over their use.

Controversies and Controls Around Covenants

By the late 1900s, concerns emerged over the extensive use of covenants. Critics argued they reduced housing supply, inflated prices and promoted NIMBYism. Some covenants fell into disuse or hampered modernisation. A few notable issues arose:

  • Holdout problems – Unanimous release of covenants was often required, allowing a minority to hold out. This prevented removal even if the majority favoured it.
  • Limiting housing supply – Restrictions on converting larger homes locked in under-occupation. Prohibitions on flats and multi-occupation dwellings reduced urban density.
  • Design constraints – Limits on alterations and extensions made homes difficult to expand and modernise. Materials controls and standard designs are also locked in dated aesthetics.
  • Uncertainty over enforcement – Vague covenants and lack of monitoring meant uncertainty over what was allowed. However, the prohibition on professional advice left homeowners struggling to interpret covenants.
  • Management of shared amenities – Covenants often lacked clear rules for shared amenity management and dispute resolution.

Reforms were introduced to address these issues:

  • The Leasehold Reform, Housing and Urban Development Act 1993 allowed covenants to be overridden by a Lands Tribunal if unreasonable. This allowed more flexible release.
  • Commonhold tenure was introduced in 2002 to improve the management of shared amenities under covenants. However, uptake remains low.
  • The Law of Property Act 1925 s84 and s237 allowed historic covenants to be discharged more easily if no longer relevant.
  • Greater use of sunset clauses to limit covenant duration, especially for aesthetic controls.

These changes balanced property rights and restrictions more fairly. Covenants remain widely used but their scope is now controlled better.

Key Uses and Types of Covenants Today

Despite past controversies, covenants remain extensively used in the UK property market today. Some key uses and covenant types include:

Maintaining Development Standards

Covenants help maintain consistent standards on new housing estates and apartment blocks. Typical covenants:

  • Restrict changes to a property’s exterior appearance, extensions, and conversions.
  • Control permitted development rights e.g. limits on outbuildings.
  • Require upkeep of gardens, fences and driveway maintenance.
  • Govern parking and traffic.
  • Prohibit business activity being conducted from the property.

Managing Shared Amenities

On estates with private roads, sewers, play areas or other shared amenities, covenants govern usage rules and maintenance obligations. A management company may be set up under the covenants and funded by homeowner service charges.

Specialised Uses

Specific covenants tailored to particular properties or areas exist, such as:

  • Agricultural covenants on former farms controlling new building conversions.
  • Conservation covenants protecting heritage assets on listed buildings.
  • Affordable housing covenants guarantee the continued use of social housing.

Lease vs. Freehold Covenants

Lease covenants impose obligations on tenants. Freehold covenants bind owners. Lease covenants usually involve a single landlord and tenant. Freehold covenants involve multiple homeowners across an estate.

Legal Classification

Covenants are classified as either positive (requiring an act) or negative (restricting use). Negative easements are more common, as positive obligations are hard to enforce. Covenants can also be legal vs. equitable. Only certain covenants ‘run with the land’ at law.

Balancing Property Freedoms and Restrictions

Covenants remain an inherent part of the UK property market, but greater balance has been achieved between property rights and restrictions. While covenants still limit how homes are used, their scope is now better controlled.

Home buyers should be aware that covenants are almost inevitable on new properties. However, ‘unreasonable’ covenants restricting supply or modernisation can be challenged. Historic covenants with no real purpose can also be removed. The UK legal system has evolved to restrain the overzealous use of private land agreements.

In conclusion, covenants remain ubiquitous in UK property ownership. Developers rely on covenants to guarantee standards, while homeowners use them to protect amenities and control neighbourhood character. However, covenants must strike a fair balance between individual property rights and collective restrictions. Onerous covenants are subject to greater oversight today, ensuring they enhance communities rather than hamper them.

We are proud members of...

  • NAPB
  • RICS
  • The Property Ombudsman
  • Trading Standards

We are proud to be the most regulated property buyer operating in the ‘Quick House Sale’ industry. We are an active member of the NAPB (National Association Of Property Buyers) and are RICS regulated, which means you can have every confidence of selling your home with us quickly & easily.