Buying a property usually means acquiring much more than four walls and a piece of land. The title may contain easements, restrictions and covenants that influence what an owner can do with the property. Restrictive covenants are particularly important because they can limit how land is used or developed.
For buyers looking at properties in the Harrogate local market, an estate agent such as Hunters Harrogate can provide useful information about the property and its surroundings, but the legal effect of a covenant should be established by a qualified conveyancer or property solicitor.
A restrictive covenant is essentially a promise made by one landowner restricting what they can do with their land for the benefit of another landowner’s land. HM Land Registry explains that such obligations can remain relevant even when the property changes hands repeatedly.
They can be straightforward, such as preventing a property from being used for business purposes, or considerably more specific, such as restricting the construction of additional buildings.
What is a restrictive covenant?
A restrictive covenant is a legal obligation that limits the use of land in some way.
It is different from a positive covenant. A positive covenant generally requires an owner to do something, such as maintain a fence or contribute towards particular works. A restrictive covenant, by contrast, generally requires an owner not to do something.
For example, a covenant might state that the owner must not:
- Build another property on part of the land
- Operate a business from the premises
- Make specified alterations
- Use the property for purposes other than residential occupation
- Construct a particular type of structure
The distinction is important because restrictive covenants can potentially bind successors in title, meaning their effect may continue after the original owner has sold the property.
Why are restrictive covenants created?
Restrictive covenants are often created when land is sold or divided.
A developer selling several plots, for example, might impose covenants on each property to establish rules governing the development. These restrictions may help maintain consistency across an estate and protect the interests of neighbouring properties.
Covenants can also arise when an owner sells part of a larger parcel of land while retaining the remainder.
The underlying rationale is usually to protect land or property from particular forms of development or use. HM Land Registry notes that restrictive covenants are commonly associated with large developments where a builder imposes restrictions on individual plots.
Importantly, the age of a covenant does not automatically make it irrelevant. An apparently antiquated restriction may still need to be investigated before an owner acts on the land.
Restrictions on building or extending a property
One of the most common forms of restrictive covenant limits building work.
A covenant might prohibit the construction of additional buildings or require the owner to obtain consent before making particular alterations.
This can become particularly relevant when a homeowner wants to:
- Build an extension
- Add a conservatory
- Construct a garage
- Build an outbuilding
- Develop part of the garden
- Add another dwelling
Planning permission and restrictive covenants are separate matters.
A project might receive planning permission from the local authority but still breach a private covenant affecting the property. Conversely, a covenant may restrict a project even where planning permission is not required.
This is why homeowners should check both planning requirements and the property’s legal title before commencing significant work.
Restrictions on changing the use of a property
Some covenants restrict how a property can be used.
For instance, a covenant might require the premises to be used solely as a private residence. Such wording could potentially affect plans to change the property into a commercial premises or use it for another purpose.
This can matter to homeowners considering:
- Running a business from home
- Converting a house into offices
- Creating holiday accommodation
- Operating a guesthouse
- Changing a residential property into another form of accommodation
The exact wording is critical. Not every home business will necessarily breach a residential-use covenant, and the interpretation can depend on the circumstances.
A solicitor should therefore review the precise wording rather than relying on a general interpretation.
Covenants preventing businesses from operating
Restrictions on trade or business use are another common example.
HM Land Registry’s data identifies restrictions preventing trades or businesses from operating on land among common forms of restrictive covenant.
A covenant could potentially restrict activities that create noise, traffic, customer visits or other disruption.
However, the existence of such a covenant does not automatically mean that every form of working from home is prohibited. The wording and actual use of the property matter.
Someone working remotely from a laptop, for example, may have a very different impact from a business receiving frequent customers or storing commercial equipment at the property.
Where a proposed business activity could conflict with a covenant, legal advice should be obtained before proceeding.
Restrictions on additional buildings and structures
A restrictive covenant may limit the construction of structures on a property.
This can be particularly relevant where a homeowner owns a large garden or substantial plot and wants to make better use of the available space.
Potentially affected projects could include:
- Garden offices
- Garages
- Workshops
- Sheds
- Annexes
- Detached accommodation
- Additional houses
Again, planning rules and restrictive covenants operate independently.
A structure could be permitted under planning legislation but prohibited by a private covenant.
This is one reason why buyers should consider future plans when purchasing a property. A large garden may appear particularly attractive, but its development potential could be constrained by title restrictions.
Covenants concerning alterations and appearance
Some covenants are designed to preserve the appearance or character of a development.
They may restrict alterations to the external appearance of properties or require consent for specific changes.
Possible examples include restrictions concerning:
- Windows
- Doors
- Roof alterations
- External walls
- Fences
- Driveways
- Satellite dishes
- External structures
Such restrictions are sometimes found on planned developments where the original developer wanted the homes to maintain a consistent appearance.
For a homeowner planning extensive renovations, these covenants can become important. A seemingly straightforward alteration may require the consent of the party with the benefit of the covenant.
Restrictions relating to nuisance and activities
Some covenants seek to prevent activities considered undesirable or disruptive.
HM Land Registry and the House of Commons Library identify restrictions concerning undesirable activities and potential nuisances as examples of restrictive covenants.
The precise wording can vary considerably.
A covenant might address activities involving excessive noise, particular commercial uses or other conduct that could affect neighbouring properties.
These provisions can be particularly relevant on residential developments where homeowners share close boundaries.
However, it is important not to assume that a covenant creates an unlimited right for neighbours to object to anything they dislike. Enforcement depends on the terms of the covenant and the legal rights associated with it.
Restrictions on selling, letting or transferring property
Some property documents contain restrictions concerning the transfer or letting of property, although it is important to distinguish these from traditional restrictive covenants.
Leasehold properties, for example, commonly contain provisions requiring consent before assignment or underletting. HM Land Registry notes that many leases contain covenants concerning assignment and underletting.
Freehold properties can also contain title restrictions or covenants that affect transactions.
A buyer should therefore establish whether any consent is required before purchasing or later selling the property.
The conveyancer should examine the title carefully and explain any relevant provisions.
How to find restrictive covenants
Restrictive covenants may be referred to in the property’s title register, but the register may direct the reader to another document containing the full wording.
HM Land Registry’s restrictive covenant data confirms that a property has a recorded covenant but does not necessarily provide the details of the restriction itself. The relevant information may be contained in documents or registers retained by HM Land Registry.
Buyers should therefore obtain and review:
- The official title register
- The title plan
- Historic conveyances
- Transfers
- Deeds referred to in the register
- Any relevant consent documents
This is particularly important where the wording appears vague or archaic.
A covenant should not be dismissed simply because it appears to date back several decades.
What happens if a restrictive covenant is breached?
The consequences of breaching a restrictive covenant can vary depending on the circumstances and the terms of the covenant.
Potential consequences can include legal action by the party entitled to enforce the covenant. In some circumstances, enforcement may seek an injunction requiring the breach to stop or remedial action to be taken.
There can also be financial consequences.
This makes it risky to proceed with prohibited work simply because obtaining planning permission was straightforward.
If a homeowner believes a covenant has already been breached, specialist legal advice should be obtained promptly.
Can restrictive covenants be removed or changed?
Restrictive covenants are not necessarily permanent and immutable, but changing or removing one can be complicated.
A covenant may sometimes be released or varied by agreement with the person or parties entitled to the benefit. This generally requires careful identification of the benefiting land and the relevant parties.
HM Land Registry explains that covenants can, in appropriate circumstances, be varied or extinguished through mechanisms including a deed of variation or release, or an application to the Upper Tribunal (Lands Chamber).
The Upper Tribunal can have jurisdiction under section 84 of the Law of Property Act 1925 to modify or discharge certain restrictive covenants.
However, the process is fact-specific and should not be treated as a straightforward administrative exercise.
Final considerations for buyers and homeowners
Restrictive covenants are an important but sometimes overlooked aspect of property ownership.
They can affect development, alterations, property use, commercial activities and the construction of additional buildings. The restriction may be obvious from the title documentation, or its meaning may require examination of an older deed.
For buyers, the best approach is to investigate the title before committing to a purchase. If there are plans to extend, renovate, build or change the property’s use, those plans should be considered alongside the covenants.
Most importantly, planning permission does not override a private restrictive covenant.
Understanding the distinction between public planning controls and private land obligations can prevent expensive mistakes. A property may have excellent development potential from a planning perspective but still be constrained by a covenant.
Careful conveyancing, thorough due diligence and specialist legal advice where necessary provide the most reliable foundation for making informed decisions about property ownership.
