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What is a restrictive covenant?
There are a lot of confusing terms to get to grips with when you buy a house: title deeds, conveyancer*, stamp duty - the list goes on. One that might currently have you scratching your head is ‘restrictive covenant’. So, what is it and is it something you need to know about?
Read our guide to learn more.
You may not be sure if your home is even subject to a restrictive covenant – but it’s a good idea to find out. You can get the answer by looking over your Title Deeds, which you can request from the Land Registry (you will need to pay a fee).
The information you’re looking for is usually listed under the ‘Property Register’ section of your home’s Title Document. You may be surprised to discover there’s a covenant there you had no idea about if your solicitor didn’t point it out to you when you were buying the property. However, by signing all of the necessary documents to become your home’s legal owner, you are agreeing to follow any restrictive covenants that affect it – you’re legally bound to do so.
What do they affect?
A restrictive covenant is a deed typically put in place by the person or party who first bought and developed the land your home sits on. Basically, it is a rule – or rules – that affects what you can and can’t do with the property.
Common restrictive covenants include not building a new property on the land, not using the property to run a business from, or making sure that you maintain the boundary wall or fence. So far, so simple – but actually, a restrictive covenant could land you in difficulties if you don’t follow it.
Do I need permission?
If you want to build an extension on your home, you probably already know that you’ll need to get planning permission from your local council. However, if there is a restrictive covenant in place that forbids you from building on that land, having planning permission from the council will not overturn this.
You will need to get in touch with the person who benefits from the restrictive covenant (or covenantee), such as the landowner, if you want to overturn the covenant. If this doesn’t work, you can apply to the Lands Tribunal to overturn the covenant – although neither of these options are straightforward.
Everybody needs good neighbours
A restrictive covenant may also come into play if you’re unlucky enough to wind up in a neighbourhood dispute. For example, if you want to build a new fence and there’s a restrictive covenant in place that specifies a minimum or maximum fence height, your neighbour can use this clause against you if you don’t comply with it.
If you breach the restrictive covenant that affects your home, even if you didn’t know there was one, the person favoured by the agreement can take action against you. They might impose a fine, or even take you to court.
But what if a previous owner breached the covenant and you’re worried about how this will affect you? One option is to take out indemnity insurance. If the work you’re worried about, such as an extension built by a previous owner, is over 12 months’ old and in that time the covenantee hasn’t challenged the work, you should be able to get an indemnity insurance policy that covers you if they do.
Similarly, if you want to carry out alterations to your home that would be in breach of a restrictive covenant and you are unable to find out who the covenantee is to get their permission, indemnity insurance should protect you. When you take out the policy, you may be asked to confirm that you aren’t currently involved in a dispute – with your neighbours, for example – and that any breach either occurred some time ago or has been ongoing for several years.
We hope this guide has answered any questions you had about restrictive covenants. If you think you might have breached one or you are planning work that could be in breach, you could speak to a *conveyance solicitor – an expert in property law – for advice.