Restrictive Covenants Affecting Land

A covenant is an agreement in a deed by which one party promises to another that they will either do or not do something. A deed is a written agreement that is signed in a particular way.

When the covenant concerns land, the party making the promise is imposing a burden on servient land and the party obtaining the promise is receiving a benefit for dominant land.

A covenant by which one party promises to do something is positive. The burden of a positive covenant does not generally bind the successors in title of the party who made the promise.

A covenant by which one party promises not to do something is negative or restrictive. Although the benefit of a restrictive covenant can be transferred from one party to another, the burden of a restrictive covenant will only bind a successor in the title if:

1. the covenant is restrictive;
2. the restrictive covenant benefits the dominant land;
3. the covenant was intended to burden the servient land; and,
4. the owner of the servient land had notice of the covenant prior to purchase.

 

Where a developer sells plots of land to two or more individuals, restrictive covenants may be enforceable by the owner of one plot against another if:

1. there was a common seller;
2. the plots of land were within a defined area and subject to mutually binding restrictions;
3. these restrictions were intended to be of benefit to all the plots of land; and,
4. the buyer of a plot of land is on notice that these restrictions are intended to be bind their plot for the benefit of other plots.  

The remedy for breach of a restrictive covenant is damages but an injunction to prevent the breach may be granted if there has been no delay in seeking its enforcement.

A restrictive covenant: 

1. will be extinguished if the dominant and servient land come into common ownership;
2. can be released by deed between the successors in title to the original contracting parties;
3. May be modified or discharged upon application to the Upper Tribunal if:
4. obsolete;
5. it impedes some reasonable use of the servient land; or,
6. no harm to the dominant land will be caused. 

 

Simon Ingham qualified as a solicitor in Scotland and now practises in England, specialising in probate and property disputes.  

If you have a dispute in England & Wales that relates to a will or inheritance, please e-mail  NewEnquiries-ContentiousProbate@chadlaw.co.uk.  

Alternatively, if you have a dispute that relates to land or buildings, please e-mail NewEnquiries-PropLit@chadlaw.co.uk.  

Otherwise, if you need advice about any dispute – or wish to try and avoid the possibility of disputes arising – please contact us by phone on 0800 015 0340 or e-mail NewEnquiries-Litigation@chadlaw.co.uk.