Signed and sealed
PUBLISHED: 06:51 25 August 2014
A covenant is a promise made in relation to the property. It can either be a promise to do something (a positive covenant) or not to do something (a restrictive covenant).
Most commonly in residential property a positive covenant would be a covenant to maintain a boundary fence or wall, a covenant to contribute monetarily towards the cost of maintaining a shared drain or shared driveway, or an obligation to carry out the work.
A restrictive covenant, however, requires the landowner not to do a specified thing whether it is building or using the land for a particular purpose. Unlike positive covenants, the burden of a restrictive covenant is capable of running with the land so that successive owners or occupiers remain bound by the restriction. The use of restrictive covenants is widespread and can be imposed in situations, for example
if someone sells off a piece of garden to a neighbour they may want to impose restrictions on the future use of that land to protect their own property. Covenants imposed years ago may also still exist and still be enforceable, which can potentially restrict the use of land.
It can be extremely difficult to identify who has the benefit of a restrictive covenant. Even where the initial description is clear, the sale of land in parts can produce a situation in which the benefit is (notionally at least) divided among a larger number of owners and occupiers, such as sales of properties on a large estate as discussed above.
The Land Registry has no obligation or power to enter the benefit of the restrictive covenant on the register of the title to the land which has the benefit of it, and the result of this is that a number of covenants may fail as it is impossible to discover who, if anyone, is entitled to enforce them. Normally, to be able to enforce a covenant, the person or organisation that wishes to enforce it would have to show that they were the owner of the land that originally benefited from the covenant and that the land did indeed benefit from that covenant - the legal terminology being that the covenant must “touch and concern” the land belonging to the enforcers. To be enforceable, there are also rules about the registration of the burden of the
covenant either as a land charge or at Land Registry in respect of the land upon which the covenant was imposed.
The primary remedy for enforcement of a restrictive covenant is an injunction to stop the activity that is prohibited by the covenant from taking place. The courts do, however, have the ability to award a payment of damages or compensation in lieu of granting an injunction.
The Lands Chamber of the Upper Tribunal (previously the Lands Tribunal) has jurisdiction to discharge or modify a restrictive covenant but not, at present, a positive one. An applicant for the discharge of a covenant would have to prove grounds set out in the Law of Property Act. The most commonly used grounds are that the covenant has become obsolete or that it impedes reasonable use or development. Even in a case where a covenant is successfully discharged or modified, the applicant may have to pay compensation and in addition will always have to pay his own costs.
Spire Solicitors LLP, 36-40 Prince of Wales Road, Norwich, NR1 1HZ; 01603 677077; www.spiresolicitors.co.uk