Restrictive covenants - how enforceable are they

mummytofour

House we are buying has some stupid covernants on it.. cant remember what they are but one is something about not sleeping outside in a shead or temp building.

Also there is one thats states that any extensions need to be approved by the builder who went bust in 1986, not long after an extention was built and as a result there is now an imdemnity policy on the house incase anybody wants to knock the house down!

Some of the covernants were sold with the land, so these would be enforced by the original land owner or his next of kin and some where with the builder, not sure if any can be enforced tho.

There is one, that the land owner put on stating that if they whish to add more homes to the fields to the rear of out house , we can not object on grounds of light deprevation, also the land owner stated what colour bricks the hosue should be built of... :eek:

Verbatim

We went into this some 8 years ago when we bought a house subject to restrictive covenants. There seem to be 2 types of covenants, those that are and are not"building schemes". Most, including ours, specifically state that they are not building schemes and my understanding is that these are unenforceable. I am not an expert and this is not advice.

RiskAdverse100

Although restrictive covenants can be imposed in a number of situations, the most common is where there is a housing development.

For a large development there could be a gap of several years between the sale of the first house and the sale of the last house.

During this period the developers will want to ensure that nothing they can control will affect house prices.

If restrictive covenants were not imposed then what the owners of the first few houses did could have a serious effect on the value of all the other houses.

For example, horrendous extensions, caravans in the front garden, car repair businesses being run from the garage, luminous green satellite dishes, noisy parties at all times etc. These are all things that could put off prospective buyers if they give the impression that the development as a whole is 'dodgy'.

So the developers will ensure that in the transfer document of every house on the development they will impose large numbers of restrictive covenants so as to control what the property owners can and cannot do.

As from the date of the last sale the developers will cease to be remotely interested in what anyone on the development does. They have sold all the plots and made their profit and are long gone. But the covenants still remain.

Sometimes the restrictive covenants have been carefully worded and make it clear that they only apply for a certain period of time - long enough for all plots to be sold. However, in most cases they are not time-limited at all.

I must stress here that what I am saying only applies to those restrictive covenants that are only ever intended to be enforceable by the developers. Sometimes what is known as 'a building scheme' is set up and here one householder can enforce their neighbour's restrictive covenants (and vice versa) if they are being breached. Such building schemes are rare.

So the usual scenario is that restrictive covenants that affect a property are queried many years after the development is completed. They look mighty bizarre as a result. In many cases the developers who can enforce them are nowhere to be found. Often they are a company who have gone bust.

Old restrictive covenants of this kind are in fact very often unenforceable because, to be able to enforce them, you have to own land nearby that could be affected if the restrictive covenants were breached. This land clearly has to benefit from the restrictive covenants.

That would certainly have been the case when the housing development had not yet been completed. The plots not yet sold would clearly benefit from the restrictive covenants imposed on all those properties that had been sold. If any were breached the developers would be able to enforce them.

If you own a property subject to restrictive covenants that seem a bit funny nowadays and appear to benefit a company that may have been the original developers, then I wouldn't worry too much if you are breaching them if the developers have either gone bust or you are pretty sure they don't own any land locally.

It is possible to apply to the Lands Tribunal to have obsolete restrictive covenants extinguished. However, the time needed and the cost means it is only an option for developers with very deep pockets.

If old restrictive covenants are causing a potential buyer of your property a problem then indemnity insurance is oten available fairly cheaply.

The position is different where someone sells part of their land for building and imposes restrictive covenants benefiting the land they retain. These will usually benefit the land and can be enforced by subsequent owners. As suggested above the position is also different where there is a building scheme.

RiskAdverse100

kimarie63

we have recently brought a strip of land with 9 conifer trees that were not maintained and had grown out of control. The land was sold to us as priavate gardens and the covenent states that the land was for private dwelling house with private gardens. After checking with the council for TPOs, which there were not, we removed the trees. We also checked on the boundary fencing and moved the fence to a metre of the boundary as the land has a right of access footpath. We have replanted 16 trees on our side of the fence. We applied for planning permission and have now been told that they understand the land to be amenity land and that planning permission has been refused. We are also under threat of having to remove our fence and move it back to the original position. I dont understand all of this. We bought the land from the owner and nothing in the covenants said we could not use the land as private garden. I also now understand that the council planning department can over-ride land registry covenants. Is this the case? I am so confused and angry that the council told us we could do this and now say we cant. Help

Sammy85_2

Our estate has similar covenants - someone should tell the neighbours that they cant have more than one car, they cant park on the road and cant have a caravan!!

I dont know where you stand legally, but quite obviously they are not enforced where i live. May be a different story if someone started keeping chickens and was causing a nuisance.

RLH33

This is an interesting thread. A housing development very local to us (about 25 houses) has a covenant saying commercial vehicles cannot be parked on the driveways. However someone has recently reported the parking of such vehicles on driveways to the housebuilder who have written to every house pointing out their responsibilities re: the covenant. Would this be an enforceable covenant?

I would be interested to know as I half had my eye on moving there if a suitable house came up but as my husband is self employed we have a signwritten van we would breach the covenant by parking it on the drive.

olly300

RLH33 wrote: »

This is an interesting thread. A housing development very local to us (about 25 houses) has a covenant saying commercial vehicles cannot be parked on the driveways. However someone has recently reported the parking of such vehicles on driveways to the housebuilder who have written to every house pointing out their responsibilities re: the covenant. Would this be an enforceable covenant?

I would be interested to know as I half had my eye on moving there if a suitable house came up but as my husband is self employed we have a signwritten van we would breach the covenant by parking it on the drive.

If it's the original builder (or a firm that brought the building company) then it is enforceable by them.

Sammy85_2

RLH33 wrote: »

This is an interesting thread. A housing development very local to us (about 25 houses) has a covenant saying commercial vehicles cannot be parked on the driveways. However someone has recently reported the parking of such vehicles on driveways to the housebuilder who have written to every house pointing out their responsibilities re: the covenant. Would this be an enforceable covenant?

I would be interested to know as I half had my eye on moving there if a suitable house came up but as my husband is self employed we have a signwritten van we would breach the covenant by parking it on the drive.

Im assuming this is a new estate?

My estate and the OP's are 30 years old.

I think if your developer is still about then they can enforce the covenants.

planning_officer

kimarie63 wrote: »

we have recently brought a strip of land with 9 conifer trees that were not maintained and had grown out of control. The land was sold to us as priavate gardens and the covenent states that the land was for private dwelling house with private gardens. After checking with the council for TPOs, which there were not, we removed the trees. We also checked on the boundary fencing and moved the fence to a metre of the boundary as the land has a right of access footpath. We have replanted 16 trees on our side of the fence. We applied for planning permission and have now been told that they understand the land to be amenity land and that planning permission has been refused. We are also under threat of having to remove our fence and move it back to the original position. I dont understand all of this. We bought the land from the owner and nothing in the covenants said we could not use the land as private garden. I also now understand that the council planning department can over-ride land registry covenants. Is this the case? I am so confused and angry that the council told us we could do this and now say we cant. Help

There are two very different issues here - private covenants and planning permission (they are completely separate and have nothing to do with each other).

Purely from a planning point of view, you are changing the use of the land from amenity land to residential garden land (irrespective of whether you own it - that has nothing to do with its use), therefore, yes, planning permission is required and the Council could well refuse an application.

The deeds and covenants are entirely separate, so it's irrelevant what they say - they're a private matter between you and whoever the covenant is with. The Council have no involvement in them.

For example, I have covenants on my house which says I need the permission of the original landowner (a charitable trust) before I can extend. So, I would need planning permission from the council and also permission from the original landowner - I would need both before I could do any building work, and if one refuses, then I can't go ahead - just to illustrate, planning permission and convenants are completely separate!)

[Deleted User]

We're just buying a house which has a restrictive covenant on it not to put up an aeriel or satellite dish on the property. Of course, every house in the street has one and is in breach of the covenant.

It's really difficult when the covenant is ridiculous but my understanding is that the benefit of a covenant runs with the land so if the original beneficiary of the covenant no longer owns the land (e.g. where a developer has flogged off all the property) they can't enforce the convenant.

It's more complicated than that, but basically I wouldn't worry.