Restrictive Covenants
Don’t think because you buy a block you can do what you like on it!
There are often restrictive covenants on land. . . . .That is “an agreement between land owners which may restrict how land may be used and developed“.
Who Is Involved?
The two parties to a covenant are:
- The party that owns the land burdened
- The party, or parties, that owns the land benefited by the covenant, which is likely to be either initially the developer, or the original landowner.
On a long established estate the party benefited will typically become your neighbours.
For example if there is a restriction on height of buildings your neighbour benefits from not being overlooked.
In this case if you want to extend upwards you will need your neighbour’s approval as well as planning permits.
Reasons for Covenants
There are many reasons Covenants are used, including to:
- Protect views from being built up – most likely to be the original landowner if they still live adjacent to the site.
- Protect the level and type of finish of all dwellings and boundaries within an estate – most likely to be the developer who wants the estate to look attractive to future land purchasers.
- Protect the type of use that takes place on a site. No car repair and animal breeding are common.
- Protect the level of development – single dwelling covenants are common, avoid if you may want to build a granny flat in the future.
The presence of a Covenant may only be indicated in ‘The Copy of Title’, or it may be included with your Section 32 or Vendor’s Statement. You need to be sure what restrictions are imposed before you buy.
What can you do about a Restrictive Covenant?
If you find a Restrictive Covenant on title, there are few courses of action you can take.
- Decide if the clauses are of benefit to you as they are likely to place similar restrictions on your neighbours.
- Pursue the removal of the covenant through legal channels which could be costly and difficult.
- Read carefully for possible ’sunset/expiry’ clauses on your covenant.
- Don’t buy if you don’t like the covenant, Just look elsewhere!
If a covenant is in place then you should abide by it.If you do not then the developer could sue you or neighbours can object that you have build something without abiding by the covenant.
Covenants life are indefinite and therefore can apply in 50 years time and so on!They tend to be forgotten when the builder has long gone bust or disappeared so he is not around to enforce it.However I believe my builders are still around. Therefore they could find out that you have built it and make you take it down!
I have not heard of a charge by a developer for approving an extension as all they do is sign the bottom of the plans, they do not check them etc.
Covenants can be overturned but you usually have to go to court and show that the covenant is unreasonable. Covenants are in place on new developments so that in so many years time there are not haphazard extensions which make the estate look like a shanty town.There are often other covenants which do not allow satellite dishes, parking of commercial vehicles outside, Storage of caravans and even what colour your house can be painted.If you come to sell your house the other sides Solicitors may request to see the covenant waiver to allow your conservatory. If you don`t have it the sale could fall through, so best to get it! Hopes this helps but be advised I am not a Solicitor or builder but just advising from personal experience.
Hi Iwona
Some good points
Brian