What is a restrictive covenant?
Restrictive covenants are binding conditions written into a property’s deeds that determine what the land owner can and cannot do with their property. A restrictive covenant requires the covenantor not to do the thing specified or not to use the land for a specific purpose. Some of the most common restrictive covenants which affect land are as follows:
Not to cause a nuisance or annoyance to neighbouring properties
Not to construct any buildings on the property
Not to use the property for business or trade purposes
Not to park caravans on the property
Not to sell alcohol from the property
Not to use the property for anything other than as a private dwelling
In registered land the covenant must always be registered on the title deeds to the property.
Unlike ‘positive’ covenants, the burden of a restrictive covenant is capable of ‘running with the land’, so that successive owners or occupiers are bound by the restriction. Positive covenants, i.e. covenants imposing an obligation to do something, do not run with freehold land.
In order for the burden to run with the freehold land, four requirements must be satisfied:
(1) The covenant must be negative in nature, such as a covenant not to build on land, or not to use the land for business purposes.
(2) There must be a dominant and servient tenement. Both the covenantee and the covenantor must own an estate in their respective tenements.
(3) There is land which benefits from (i.e. it is ‘touched and concerned’ by) the covenant. A “benefit” must be “something affecting either the value of the land or the method of its occupation or enjoyment” (Re Gadd’s Land Transfer ).
(4) The burden of the covenant was intended to run. A covenant which is personal to the covenantor will not run with the land. A covenant personal to the covenantor will die with the covenantor (if it is a person) or end when the company is wound up (if the covenantor is a company).
The main remedy for a breach of a restrictive covenant is an injunction. The legal owner of the land intended to benefit from the covenant can enforce the breach. This often includes successive owners and occupiers.
Triplerose v Beattie (2020) UKUT 180- The use of a residential flat advertised for short term occupation through internet booking agencies such as Airbnb or Booking.com breached a tenant’s covenant not to use or permit the flat to be used “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)– it was concluded that the use of a flat for short term lettings via internet booking agencies was a breach of a covenant prohibiting its use “other than as a private residence.”
Davies v Dennis (2009) EWCA 1081- there was held to be a breach of covenant against committing a nuisance and annoyance when an extension was built near to a neighbouring boundary. The three storey buildings obscured the claimant’s view of the River Thames and the building work itself caused annoyance.
Restrictive covenants are a very complex area of land law. If you need specialist legal advice on the covenants which affect your land or any land that you are proposing to purchase or develop, then please do not hesitate to contact us on 0845 287 0939 or contact us by email.