Property No 4 - Restrictive Covenants No1 (Update No1 - 24 December 2011)

A restrictive covenant burdens a parcel of land owned by say, A for the benefit of another parcel of land which is owned by B.

Example: A's land is a small house on a large plot. It is subject to a restrictive covenant that its use shall be limited to being a plot for one house. A obtains planning permission to build two more dwellings on his land. His contractor puts up a sign and begins to clear the site for the first new house. B immediately calls A and tells him of the restrictive covenant. The builder is instructed by A to cease work. The builder does so and sues A for breach of contract!

Firstly,  note that these matters are being described in very general and straightforward terms. They are not so easy to solve as may be implied. It is therefore strongly advised to seek the advice of a solicitor or specialist professional surveyor before proceeding.

Back to A - if a landowner has A's situation he/she should have perhaps been able to seek the remedy beforehand. Possible "solutions" are:

• Recognising the strength of the neighbour's situation, do nothing.
• Seek to insure for "defective" title - if the restrictive covenant is very old and it is not obvious that anyone nearby benefits from it, an insurance policy might be obtainable;
• Again if the restrictive covenant is old etc, seek to have it discharged or modified under section 84 of the Law of Property Act 1925;
• Negotiate to have the covenant lifted by the owner of the land taking the benefit of the covenant;
• The last (for the imprudent perhaps) is to proceed anyway - the nearby landowner  may not be so alert as the real B above! BUT that is very risky!