Restrictive Covenants: What You Need to Know

When buying or selling a property it is important to understand any restrictive covenants affecting the land. These covenants, found in the Title Register or in an official copy document referenced in the Register, are legally binding conditions that set out what you can and cannot do with your property. They are usually imposed by a developer or previous landowner to preserve the character, appearance, or orderly use of an area.

What Are Restrictive Covenants?

Restrictive covenants are obligations that prevent certain actions on the property. Common examples include:

• Restrictions on structural alterations or extensions
• Prohibitions on running a business from the property
• Limitations on parking certain vehicles (e.g., caravans or commercial vans)
• Rules designed to maintain uniformity within an estate or development

The “beneficiary” of a covenant is usually the party whose land the covenant was intended to protect. This is often a neighbouring property owner, the original developer (or any successor who retained adjoining land), or a residents’ management or estate company.

Importantly, restrictive covenants “run with the land”, meaning they bind not only the first owner but all future owners as well.

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Are All Covenants Still Enforceable?

Many restrictive covenants remain valid indefinitely. However, some older covenants may be difficult, or even impossible, to enforce. This can happen if:

• Identifying the current beneficiary can sometimes be complex, particularly where land has been subdivided or developers have ceased trading
• The covenant has become obsolete due to changes in the area
• The wording is too vague or ambiguous to apply in modern practice

Each case is assessed on its own merits, so legal advice is essential.

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What Happens if There’s a Breach?

If a restrictive covenant has been breached, whether by you or a previous owner, there are steps that can be taken to manage the risk. In many cases, restrictive covenant indemnity insurance is recommended, particularly where:

• The breach occurred some time ago and has not been challenged
• No contact has been made with the party who may benefit from the covenant

This insurance is typically arranged during the conveyancing process and is often funded by the seller. Indemnity insurance does not cure the breach or grant consent it provides financial protection should anyone attempt to enforce the covenant in the future.

Seeking retrospective consent is usually not advisable as: –

• It may invalidate the availability of indemnity insurance
• It could alert the beneficiary to the breach
• You may be required to undo the work or pay substantial fees

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Example Scenario

During your purchase, we review the Title Register and discover a restrictive covenant from 1995 preventing “the erection of any outward extension without the prior written consent of the management company.” The sellers have already built a side extension, but there is no evidence that consent was ever obtained. The management company has never raised any concerns, and the extension has been in place for more than 10 years. In this situation, we would normally recommend restrictive covenant indemnity insurance to protect you against the risk of enforcement. Crucially, we would avoid contacting the management company, as doing so could alert them to the breach and make an indemnity policy unavailable.

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How We Protect You During Your Purchase

As part of our conveyancing investigations, we will:

• Review all covenants affecting the property
• Report to you on any restrictions
• Identify existing breaches
• Ensure that suitable indemnity insurance is obtained, where necessary

This enables you to proceed with confidence and avoid unexpected issues later.

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Need Advice?

Should you need advice on restrictive covenants at any stage of your transaction, we’re always here to help. Our team will ensure you move forward with your property plans smoothly and securely.