restrictive covenant binding??

helpme3210

does a restrictive covenant have to be noted on the register and is it binding if it is not? (in registered land, uk law)

ThePants999

I think the answer is: a covenant is binding if the party it would bind agrees to it. Inclusion on the register is the usual process by which a covenant remains binding on the owner of a property as that ownership changes, as it says "ownership cannot change unless the new owner agrees to these covenants", in which case it's then easy to prove that the owner agreed to them, as they own the property. In the absence of anything on the register, the party seeking to enforce the covenant would need some other way of proving that the party subject to it had agreed to it.

da_rule

The answer depends on the type of covenant (positive or negative). Positive ones do not usually run with the land unless expressly included as part of the transfer deed (i.e. the incoming owner covenants with the outgoing owner to take on liability for the covenants).

Negative covenants run with the land and do not need to be specifically transferred.

There are also personal covenants which function in a similar way to positive covenants.

All covenants are binding unless they are discharged or removed by the Tribunal. They may be recorded in the Title Register. How they are recorded will depend on what documents were available to the Land Registry. Sometimes you will see complete verbatim copies of the covenant, sometimes you will see statements such as “the transfer dated XX between XX and XX contains covenants”, and in the case of adverse possession or missing deeds you may see a warning that the land may be subject to unknown covenants. Therefore, there is a possibility that a Title Register may not make refeeebxe to covenants, if the Land Registry did not know they existed at the time of registration.

helpme3210

Thank you for your reply, just to clarify:

if the covenant wasn't on the title but the land is sold to another who doesn't know about it, it will be binding?

(restrictive covenant to restrict planning permission)

da_rule

You need to give some more information.

Either you know there's a covenant or you don't. If you find out after purchase, then how did it come to light?