Taking care over land covenants; Your house is not always yours to do with as you please. Property law expert Claire Simmons looks at restrictive covenants.
HOMEOWNERS should be aware that if they are intending to carry out external alterations to their property, such as extensions and conservatories, consent may be needed under the terms of the title to their property due to restrictive covenants imposed upon the land.
This type of consent is additional to any planning permission and Building Regulations approval which may also be required and can be sometimes be overlooked.
Many properties are subject to restrictive covenants - a promise by one person to another, for example a buyer of land and a seller to do or not to do something on the property. A restrictive covenant is exactly that, it is restrictive.
They are usually imposed by a landowner selling off land who wishes to retain some control over it. It binds the land and not the individual and, therefore, "runs with the land". This means that the covenant continues to be enforceable even when the buyer sells the land on to another person.
Notwithstanding the fact that a restrictive covenant may have been made many years ago and appear to be obsolete, they still continue to have effect. Examples include not to cause a nuisance to neighbours, not to carry out any building or development on the land, not to erect buildings or additional structures and not to use the land for any trade or business activity.
If a homeowner's future use of a property will cause a breach of the restrictive covenants imposed upon the land, such as the construction of an extension, it is safest to assume that the restrictive covenants are still enforceable.
Contacting the person having the benefit of the restrictive covenant is rarely a viable option. If the restrictive covenants were imposed years before it may be difficult to trace the person having the benefit. If the restrictive covenant has been imposed within the past 20 to 30 years then it may be possible to trace the person. However, they may charge to provide consent or to release or modify the restrictive covenant concerned.
The Lands Tribunal has power in certain circumstances to modify or discharge restrictive covenants where the original purpose of the covenant has become inappropriate. However, this solution may not be quick or cheap to pursue.
An alternative would be to consider an indemnity insurance policy, generally available at competitive premiums depending on the circumstances. However, any approach made to any person likely to have the benefit of the restrictive covenant would prevent you being able to obtain an indemnity insurance policy.
Restrictive covenants imposed upon a property are a complicated area of law and if you are considering carrying out any external alterations you should discuss this with your solicitor to see if there are any covenants upon the property.
You should not attempt to contact any person likely to have the benefit of a restrictive covenant without having first sought the advice of your solicitor. ? Claire Simmons is a solicitor in the property department at Ward Hadaway law firm in Newcastle. She can be contacted at firstname.lastname@example.org or on 0191 204 4183.