How To Check for Restrictive Covenants on your Property

How to Check for Restrictive Covenants on your Property

If you own a property or you’re considering a new property purchase, understand what rules and restrictions you might face should you ever decide to make any changes or those you may face when it comes to using your property, getting pets, or having a washing line is an absolute must. Restrictive Covenants can change the way you utilise your property, so knowing the answer to the question “What are Restrictive Covenants” and knowing how to deal with them is a must.

Understanding the Power of a Restrictive Covenant

What is a Restrictive Covenant? These are regulations that are written into the title deed by sellers. They apply to both homes and pieces of property, and they can be almost anything like regulations about putting up satellite dishes or repair liabilities. Common Restrictive Covenants, though, discuss adding to structures or making various alterations. Typically the goal is to stop potential changes from having a serious impact on a neighbourhood because it might change the tone or shift the uniformity. In some cases, the goal is to avoid added maintenance to an area. In others, it’s so landowners might get an added bit of control over the property in the years to come. Most Restrictive Covenants apply to all future owners of the property. To have the removed means a legal challenge.

Here’s a quick example that may help you better understand the answer to “What is a Restrictive Covenant”. Imagine Person 1 sells part of their land to Person 2. Person 1, though, wants to protect their view of the beautiful rolling hills, so they create a Restrictive Covenant on the land that says they cannot erect buildings on that land over a certain size. When Person 2 buys that portion of Person 1’s land, they will be limited by the Restrictive Covenants, meaning they cannot make those changes. That’s true for any other person who buys that piece of land from Person 2. Who enforces Restrictive Covenants like this one? Person 1 is responsible for that job.

Restrictive Covenants are less common now than they were prior to World War II. After the end of World War II, The Town and Country Planning Act was introduced to help control development. It’s the act that introduced the need from planning permission from the local council.

How Do You Know if There’s a Restrictive Covenant on Your Property?

Not sure if you already have a Restrictive Covenant in place on your property? Where will you learn how to find Restrictive Covenants on your property? UK conveyancing solicitors make people aware of these during the purchase process, but that’s not always true. If you want to check to ensure there are no Restrictive Covenants, you’ll need to create an account with HM Land Registry to look for all of the data on the property. It will show Restrictive Covenants on any registered land or property in England and Wales. What you won’t find, though, are the details about the Restrictive Covenants, meaning you’ll need to look at the other documentation like the title plan to find out exactly what those Restrictive Covenants might be. The Title Deeds to your property should have the list of Restrictive Covenants on your property, but if you’re confused, check with a solicitor or even your mortgage company for more information.

It’s important to note that about 15% of land in England and Wales remains unregistered, and while the registry is now required any time a piece of land is sold, there are some properties that haven’t changed lands for hundreds of years, so if the opportunity to purchase unregistered land has just become yours, you must be quite careful to ensure no Restrictive Covenants exist on that land.

Restrictive Covenant vs. Personal Covenant

If you come across a Personal Covenant as you search for potential a Restrictive Covenant with the land, it’s important to understand that these are two very different things. Personal Covenants do not run with the land. They’re typically just an action a buyer agrees to if the property is sold, so they only really apply to the individual who agreed to it initially. For example, perhaps the new owner agreed to a Personal Covenant of building a fence along a given boundary. It’s an action that must legally be taken, but only by the party who agreed to it initially.

In your search for information, you may also come across easements. These are private agreements that allow others to access the property. For example, perhaps there’s a shared right of way so another person can access their property through your new property. This isn’t the same as Restrictive Covenants property holders place or even Personal Covenants. These are typically lost when the land is sold, but can be extended if the new owners agree to them.

Why Restrictive Covenants Can Be Such a Problem

Generally, you’ll know if your property has Restrictive Covenants, meaning before you make the purchase, and in almost all cases, it will be listed in the Title Deeds. That will help you to know what you can and cannot do. These often become a problem, though, when you don’t know about them during the purchase process.

The goal, generally, is to ensure radical changes don’t happen to a property. For example, imagine you buy a house for its historic character. In most cases, you won’t want to make design changes or other alterations, but if you do, you may be limited on what modernising features you can actually add. That Restrictive Covenant may work in your favour at times, too. Your neighbours won’t be allowed to make any changes that might impact the value of your home too.

Restrictive Covenants property holders often get in trouble if they knowingly or unknowingly breach them. If a nearby person reports “There’s a neighbour breaching a Restrictive Covenant” or the person who holds the benefit of the Covenant” otherwise finds out, you’ll be required to undo any work found to be in breach of Restrictive Covenant guidelines, then pay a fee. You may also face legal action. Imagine, for example, you added an extension that breached a Restrictive Covenant. You’d be required to pay to remove the extension, then you’d be required to pay a fee.

Who enforces them? Can a neighbour enforce a Restrictive Covenant? It depends on who holds the benefit of the covenant. In some cases, a neighbour can enforce them. It just depends on who benefits from the Covenant.

Does planning permission override a Restrictive Covenant? In most cases, no, and you’re responsible for ensuring any Covenants on your property are honoured.

In almost every case, your solicitor should have highlighted any Restrictive Covenants on the property before you made your purchase. If they did not, however, you can file a complaint with the Legal Ombudsman. You may be eligible for compensation in those cases, but damages are limited to £50,000, so you may still have to pay quite a bit out-of-pocket to cover the removal of the work you’ve had done and the legal fees you face as a result of having that work done.

How to Get Around Restrictive Covenants

It is possible to remove Restrictive Covenants, meaning you can do whatever you like with the property. In some cases, removing Restrictive Covenants can even be done before you purchase the property. Learning how to get around Restrictive Covenants this way, though, means you’ll need to know who holds the “benefit of the covenant.” That’s the individual, company, or organisation that wanted it there initially. From there, you simply negotiate with them to have it removed as a condition of your purchase of the property. You could even discuss how they plan on enforcing Restrictive Covenants and whether they’re still interested in doing so to better understand the situation.

There are some very old Restrictive Covenants in place that bring up the question of the enforceability of Restrictive Covenants on land UK property owners currently hold. In fact, it’s one way people learn how to get around Restrictive Covenants. For example, perhaps the original land owner can’t be traced. Maybe it’s too difficult to make happen. You could have a Restrictive Covenant with a company that no longer exists. It could also be historically obsolete. You may be able to gain consent, then pay to have that removed. How much does it cost to remove a Restrictive Covenant? It depends on exactly what it is and who is responsible for it. To learn the answer to “How much does it cost to remove a Restrictive Covenant” you’ll need to meet with your solicitor.

In the event you’re unable to negotiate the removal of Restrictive Covenants, land law suggests one way to learn how to get around Restrictive Covenants is to challenge the rule itself legally. You’ll need to apply to the Lands Camber of the Upper Tribunal to have them either change it or discharge it entirely. You will need a solicitor’s help to do so, and because it’s a legal action, it is possible that it will be both risky and time-consuming. If you win, you do get the Restrictive Covenant removed, but you’ll have to pay the legal costs. If you lose, you may have to pay the other party’s legal fees.

Selling Your Home with Restrictive Covenants on Property

Maybe you wish to sell your home, but it has Restrictive Covenants, meaning the sale will be harder. You can do so, but it’s important to notify the potential sellers of the covenant that’s in place. If you’ve breached it at any point in time, you may need to take some extra steps, though. First, work with your solicitor to ensure the wording is correct and enforceable on the Covenant. Then, if you’ve had the breach for more than 12 months and no one has challenged it, take out a Restrictive Covenant Indemnity Insurance policy. A Restrictive Covenant Indemnity Insurance policy typically lasts forever and can be passed on when you sell the property to protect future owners. You’ll need to work with your solicitor to obtain Restrictive Covenant Indemnity Insurance, and the cost of the policy depends extensively on how many Restrictive Covenants have been breached as well as the overall value of the property.

Restrictive Covenant insurance is just one way to handle it. You can also approach the beneficiary of the Covenant to apply for retrospective consent, but there’s a chance they won’t agree, and they’ll work to enforce the Restrictive Covenant, costing you the potential of a sale and thousands of pounds instead.

Should I Buy a House with a Restrictive Covenant?

Thinking of buying a home with a Restrictive Covenant attached? That can be difficult, and you should spend some time reviewing the agreement and understanding it before you make a purchase. Talk with a solicitor to ensure you understand the agreement as a whole.

Enforcing a Restrictive Covenant

If you currently have a Restrictive Covenant on a property, you may feel the need to enforce it at some point in time. How much does it cost to enforce a Restrictive Covenant? You will be expected to pay for your solicitor and any associated court costs.

Discovering and Dealing with Restrictive Covenants UK Property Holders Have Placed

Understanding how to get around Restrictive Covenants and the simple answer to “What is a Restrictive Covenant” is a must as a property owner and a potential buyer. Talk with your solicitor to learn more if you’re concerned about Restrictive Covenants UK property holders have placed or if you’re concerned about enforcing your own.

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