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What is a breach of restrictive covenant?

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You’ve paid your deposit, moved in and you’re ready to start making your new home your own. But are you allowed? Some transfers and leases include a list of things you cannot do to the property you now own. Developers/Landlords and Management Companies are often keen to enforce restrictive covenants that change the appearance and conformity of their housing projects.

If your deeds contain a restrictive covenant, please read our guide below for more information. 

What is a restrictive covenant? 

Restrictive covenants are binding agreements that are often written into the property transfer or lease by the developer/landlord at the point of the build. Restrictive covenants can prevent homeowners from making certain alterations to their property or land, such as building extensions, converting the property into flats, running a business from the property, and other substantial buildings or structures being constructed on the land. In the case of leasehold flats, this is likely to be things such as the installation of satellite dishes, installing wood/laminate flooring, or even restricting what types of vehicles can be parked onsite and if you are permitted to keep a pet within the demised premises.

Why are restrictive covenants used?

Restrictive covenants can be used by developers to ensure compliance with any planning conditions to preserve the appearance of the development, or to prevent a potential nuisance to other properties within the development. Property developers can, for example, prohibit the installation of satellite dishes or aerials or include a covenant requiring the owner to maintain their front garden.

Do restrictive covenants only apply to new builds?

Restrictive covenants can be included in any transfer/lease and it is not uncommon for the deeds to older properties to contain restrictive covenants. Generally, there is no time limit on when a restrictive covenant can be enforced. Also, some restrictive covenants may be considered unenforceable such as if the original landowner cannot be traced or if the restriction is worded ambiguously. Some restrictive covenants are now historically inaccurate – for example, some homes in Brighton and Hove are prohibited from displaying their washing in “a lewd and lascivious manner.”

What happens if I breach a restrictive covenant?

If you have unknowingly (or knowingly) breached a restrictive covenant in your transfer/lease, you could be forced to undo what you’ve done, for example removing a satellite dish or replacing wooden flooring. Any breaches that are not remedied could result in legal action by the Landlord/Management Company. If you decide to sell and you have breached a restrictive covenant, providing that it has gone unchallenged for more than 12 months, you may be able to obtain indemnity insurance to protect you and your purchaser. 

If you are subject to legal action due to a breach of a restrictive covenant, you should consult a solicitor. It is possible for a Landlord/Management Company to seek damages for a breach of covenant, however, the court’s preferred course of action is usually to require the breach to be remedied, for example, removal of the satellite dish or by changing the flooring to its existing fabrication.

Removal of a restrictive covenant from a Transfer/Lease.

Sometimes you may be able to remove restrictive covenants from your transfer/lease. The first step would be to negotiate with the original developer or landowner to enter into a formal agreement to remove the covenant. It is also possible to apply to the Upper Tribunal (Lands Chamber) – formerly the Lands Tribunal – but this is a lengthy and costly process. If you want to remove a restrictive covenant, you should speak with a specialist solicitor. 

Are restrictive covenants always enforceable?

Generally speaking, it is hard to enforce a restrictive covenant after 20 years. The Limitation Act 1980 also states that claims in land should be brought within 12 years, within 12 years from the time the breach occurred, not when the deed came into force.

 

We hope you have found this helpful.

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