Restrictive covenants are a type of clause widely implemented in the sale and purchase of property in the UK. With a restrictive covenant in place a seller is able to put certain restrictions on the use of land or a building in the future; it is intended as a means by which the original owner can retain some control while also, in many cases, protecting the interests of neighbours and/or the local community.
Often a buyer may not be aware of the existence of a restrictive covenant on the property and, in a situation such as this, it is important for the buyer to seek the advice of a residential conveyancing solicitor experienced in understanding the full implications of this type of clause. However, buyers are legally obliged to inform a purchaser of the existence of a restrictive covenant and should be clear in communicating its full possible consequences.
The existence of a restrictive covenant can cause considerable stress and inconvenience to a new buyer; however, unless its terms are considered unreasonable and/or incapable of being met, the seller of a property has the right to impose as many restrictive conditions as he or she
wishes.
Typical examples of clauses included within a restrictive covenant include the following:
- No pets or animals on the property
- No noise or nuisance to neighbours
- Colour restrictions on exterior paintwork
- No fences or obstructions in a front garden
- No further development or extension of a property
Mutually enforceable covenants
On occasion a group of neighbours or mutually-interested local residents may look to draw up a mutually-enforceable covenant, for example to prevent each other from taking any course of action which might have a negative impact on the enjoyment of their properties or the local area. Such covenants are common among leaseholders who share the use of a freehold property.
Time limits, succession and death
Unless the covenant states otherwise, its restrictions will apply to all successive owners of the property.
Furthermore, some covenants may have stated expiry dates or become inapplicable if the seller or his or her heirs die. In cases of commercially motivated restricted covenants, terms may become redundant in the event the relevant business ceases to trade.
Upper Tribunal judgements
The Upper Tribunal was created in 2008 to replace the Lands Tribunal and has the power to alter or annul a restrictive covenant if it is deemed to be no longer relevant or reasonable.
However, challenging a restrictive covenant at the Upper Tribunal can be a costly process and can also take a considerable amount of time. As such, it is essential to seek the advice of an experienced residential conveyancing solicitor before pursuing this option.
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