Restrictive covenants and the things you cannot do

This is less a set of instructions about restrictive covenants than an argument, and it is worth saying so at the start.

How a promise attaches to land

When land is sold, the seller can impose obligations that run with it, benefiting land they retain. Later owners are bound even though they never agreed to anything, which is what distinguishes a covenant from a contract. Some are ancient and were imposed by estates, builders or institutions long since gone.

They appear on the title, which is why the burdens section deserves reading before you offer.

What they typically restrict

Common examples prohibit business use, keeping certain animals, erecting structures, subdividing plots, or altering the exterior without consent. Modern developments frequently restrict parking commercial vehicles, boundary treatments, satellite dishes and extensions. Some covenants are positive, requiring maintenance of a fence or a private road, and those carry a recurring cost.

A covenant requiring consent from a named party is only workable if that party can still be found.

Covenants and planning are different systems

Planning permission from the local authority does not override a private covenant, and a covenant does not remove the need for planning permission. A buyer with consent to extend can still be prevented from doing so by a covenant, and this catches people regularly. Check both before buying a property specifically because you intend to alter it.

Where it helps most, the two are enforced by different parties through different routes.

Enforcement in practice

Enforcement requires someone with the benefit of the covenant who is willing to act, which is why many old covenants are never enforced. Never enforced is not the same as unenforceable, and a new neighbour or a developer who acquires the benefiting land can change that. Remedies include injunctions requiring removal of works, which is far more serious than a payment after the fact.

Insurance against breach is commonly used and usually requires that nobody has been approached about the covenant, which is why you must not contact the beneficiary first.

Getting a covenant released or modified

Where the beneficiary is identifiable, a release can be negotiated, usually for a payment. Several jurisdictions have a tribunal or court procedure to modify or discharge obsolete covenants, which takes time and costs money. Indemnity insurance is the quicker route where the risk is judged low, and it covers loss rather than granting permission.

Which route suits depends on what you intend to do and how visible it would be.

What to do as a buyer

Ask for the covenants at the earliest stage, particularly if your plans for the property depend on altering it. Where an existing extension appears to breach a covenant, ask what was done about it and whether insurance is in place.

Where it helps most, check whether any positive obligations carry a recurring cost, such as contributing to a private road. This is general information; a conveyancer must advise on any specific covenant.

The takeaway

If your plans for a property depend on changing it, read the covenants before you offer.

The version you keep doing is the version that works.