When carrying out development of land, a developer is required not only to obtain planning permission but they must also comply with any restrictive covenants.
A restrictive covenant is an obligation attached to land which can restrict the owner’s use of the land. Examples of such covenants may be a limit on the number of properties constructed or a limit on the height of the properties built so as to ensure a neighbour’s view is not restricted.
If there is a covenant on the title, is it valid and enforceable and will it affect the proposed development? A covenant will not be enforceable in circumstances where there is ambiguity or, if it is contrary to public policy.
If this is the case then it is still possible for the land to be developed but it could mean a change to the proposed layout and construction of the development causing additional costs and / or delays.
The possible courses of action which can be pursued are:
Indemnity Insurance – where the covenant is so old that it is not possible to identify the beneficiary then it may be possible to seek indemnity insurance against a claim arising.
A formal release from the covenant – the beneficiary of the covenant may agree to waive the restriction. If so, this will be formally documented in a deed and the restriction removed from the title.
A Lands Tribunal application – under section 84(1) of the Law of Property Act 1925 the tribunal may modify or discharge a restrictive covenant affecting the land.
A court application to declare the covenant invalid – such an application can be made if there is doubt over whether the restrictive covenant is valid and enforceable.
This was the option taken in the case of Bath Rugby Ltd v Greenwood and others  EWCA Civ 1927. In this case Bath Rugby Club (‘BRC’) challenged the enforceability of a restrictive covenant under s.84(2) of the Law of Property Act 1925. The covenant being: ‘.. no … or other buildings for the purpose of any trade or business which may be or grow to be a nuisance annoyance or disturbance or otherwise prejudicially affect the adjoining premises or the neighbourhood shall at any time hereafter be erected upon the said hereditaments and premises …’.
BRC wanted to build a larger stadium to replace the existing stadium which would also include retail and commercial outlets and car parking. BRC argued that there was no-one who could show they had the benefit of the covenant.
The issue was whether the land having the benefit of the covenant was sufficiently identified in the 1922 Conveyance. In order for the covenant to be annexed to land it must be for the benefit and protection of defined land. It was decided that as the covenant was for the benefit of the ‘neighbourhood’ this term did not sufficiently identify the land having the benefit of the covenant. As such, the covenant had not been annexed to land and there was no-one to enforce the covenant.
If you need any advice on restrictive covenants, please contact a member of our commercial property law team in confidence here or on 02920 829 100 for a free initial call to see how they can help.
To speak to one of our experts today, please contact us on 02920 829 100 or by using our Contact Us form for a free initial chat to see how we can help.
I have worked with Darwin Gray for a number of years and the level of service, professionalism and timely response is second to none. I would highly recommend Darwin Gray to any business.”
Darwin Gray have provided us with a first-class service for many years now. They really take the time to understand our business and develop relationships which results in advice and support that is contextualised and effective.”
We have worked with Darwin Gray for several years and have always found their services and advice to be first class.”
An extremely professional and sincere company who make time for your queries and understand the need to break down certain facts and information to ensure everything is understood perfectly. I would highly recommend the company to anyone looking for any type of legal advice”
PSS has worked with Darwin Gray for many years. We have always received an excellent service. Prompt and professional advice and support.”
We have used several departments within DG recently and we have been very pleased with an effective, efficient and down to earth service. Very happy thus far and I expect that we will continue to use DG.”
Darwin Gray offer us truly superb services. Very professional, quick and services available bilingually which is very important to us, highly recommend.”
My “go to” in urgent and time sensitive cases for direction, support and advice. The team are quick to respond to calls or emails for advice and support on all matters. Always explain complex matters in a way a lay person can easily understand.”
Darwin Gray have acted for myself and my company over a number of years and at all times we have been treated with a professional manner yet maintain a common-sense approach at all levels. We couldn’t recommend them more highly.”
We have been clients of Darwin Gray for many years; they’ve always dealt with all of our legal matters with such professionalism. They work around us, even during awkward hours, and we feel confident we can always rely on them.”
Darwin Gray has been acting for Siltbuster for more than ten years. We would have no hesitation in recommending Darwin Gray to other organisations small or large.”
From the very first conversation, I had no doubt that Darwin Gray should be the firm to receive our instructions on this matter. I would have no hesitation in recommending Darwin Gray.”
We regularly instruct Darwin Gray. Their service in dealing with our transactional matters and disputes is always professional, prompt and efficient.”
Darwin Gray guided me through a long and extended process that would have been much more difficult had it not been for their patience and constant support.”
Excellent and efficient service. Great result achieved, highly professional and transparent on pricing. Would recommend.”
Superb legal service provided. Exceeded expectations. They went above and beyond in order to provide the best service possible.”
Very professional and understanding. They were a calming influence in a very troubling situation and they brought it to a very successful conclusion”
We have used Darwin Gray and have been seriously impressed. The personal approach is what Darwin Gray are excelling on and is the reason why we will continue to work with them in the future.”