Purpose of restrictive covenants
Restrictive covenants law provides a way of restricting the long-term use of land. The effect is that the use of one plot of land (“Plot B “) will be restricted, in a way which is an advantage to another plot of land (Plot A”). Over time, the population increases. Land use becomes more and more intensive, and land tends to get split into smaller plots. Restrictive covenants are often imposed in this situation: a landowner selling off parts of her land will wish to be clear that activities on the part she sells will not adversely affect the part she retains.
A restrictive covenant has to be created by means of a deed, executed by the owners of the two pieces of land involved. Restrictive covenants are often imposed when land is sold: the deed dealing with the sale will then contain the restrictive covenant. The two plots of land do not have to be touching: just reasonably close, so that one is affected by what happens on the other. Subject to five tests a restrictive covenant will affect not only the landowners who executed the deed, but later owners of the two plots of land: (1) The restriction must be negative in its effect; (2) It must be relevant to the use of the land not merely personal to the new owner; (3) There must be an intention for the restriction to be passed on; (4) There must be some real advantage to the land which has the benefit of the restriction; (5) The person acquiring the land subject to the restriction must be aware of it.
The restriction can be quite trivial — or it can mean that there are serious limits on what can be done with the land.
Restrictive covenants law doesn’t supply a fixed list of, or particular wording for, restrictive covenants. But the following examples would all pass the tests of being negative in their effect, and of being relevant to the use of land, rather than something personal:
• Not to build more than one house on the land.
• Not to park boats or trailers or caravans on the land.
• Not to put a washing line in the front garden.
• Not to use the land for any commercial or industrial purpose.
• Not to keep more than two dogs on the land.
• Not to operate any noisy machinery outside a building between 11 p.m. and 8 a.m.
Some of these restrictions are trivial; others would seriously affect the value and use of the land subject to them. Anyone buying land subject to serious restrictions would expect the price to be a good deal lower as a result (but see below on the Lands Chamber).
The Lands Chamber
The Lands Chamber (formally known as the Lands Tribunal) has a special power to alter or cancel restrictive covenants.
Since the middle of the twentieth century we have had a modern planning system, which controls the development of land. Restrictive covenants may prevent development which is acceptable under the modern planning system, or they be problemmatical because they are ancient and it’s difficult to know whether they have survived the passage of time. The law thus allows the Lands Chamber to intervene.
The Lands Chamber can cancel restrictive covenants, or alter them so as to make them less restrictive, in specific circumstances, which can be summarised as follows:
• The restriction is obsolete, because of changes in the character of the land subject to the restriction, or the neighbourhood, or other circumstances
• The restriction impedes reasonable use of Plot B. In this case, the restriction must be of no real advantage to the owner of Plot A, or is contrary to the public interest, and that money can compensate them for any loss of advantage.
• The owner of Plot A agrees to the cancellation or alteration of the restrictive covenant.
• The restriction can be cancelled or altered without harming the owner of Plot A.
The law requires the Lands Chamber to take into account the planning background and history of the area, as well as “any other material circumstances”. So, for example, if the restrictive covenant is an old one which forbids building on Plot B, and planning permission has been granted for building houses on it, and there is a public need for more houses, the owner of Plot A may find that the Lands Chamberis prepared to cancel the restriction, or at least alter it so as to allow some houses to be built on Plot B, perhaps at the same time awarding some compensation to the owner of Plot A.
Whether a restriction can be cancelled or altered will depend upon the facts of the case. It may be, for example, that a restriction can’t be cancelled without harming the owner of Plot A but can be altered without harming them. If so, the Lands Chamber can alter it but not cancel it.
Enforcement of a restrictive covenant is a matter for the current owner of the land with the benefit of the restriction. The Lands Chamber position is not responsible for enforcing restrictive covenants; nor is any other public body apart from the courts, which can grant an injunction to stop breach of a restrictive covenants, or, as an alternative to an injunction, damages (money compensation).
Help from Property Law Advice
For the sorts of isues which arise in practice, and on which we can offer advice, please see our Restrictive covenants page. If you’d like a quick response, to see whether we can help, please see our Initial enquiry page.
— // —