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Covenants

A covenant is a right one landowner has to stop something occurring over his neighbour’s land.

Covenants usually begin life as something the original owner of both pieces of land places on the land he is selling to protect the retained land from being devalued by the activities which the new purchaser might carry on. 

Examples of restrictive covenants are: not to keep livestock, not to run a trade or business, and not to put up a new building. As one can imagine it is in the field of development that the party wishing to build on or change the use of his land finds himself restricted by covenants.

Planning Law & Covenants

Planning law is a creature of public law: it regulates what the state says the citizen can and cannot build. A covenant by contrast is a private agreement and unaffected by planning law. So, if A has a covenant against development over B’s land, then regardless of whether B gets planning permission for his extension, he cannot build it without A’s permission.

Enforceable & Unenforceable Covenants

Contractually, A and B can agree what they like and the terms of what they agree will bind only them. However, if they wish to bind their successors in title they must draft their agreement carefully. No positive terms – that is an obligation on B to carry out a positive act like ‘painting the fence’ – will be enforced against a successor. Only negative terms – that is a term obliging B not to do something – which will be enforced, and only so long as certain ingredients are in place. So when looking to challenge a restrictive covenant what should one consider?

  1. Negative language only: Can the language of the covenant be blue-pencilled so as only to leave a negative burden on B? If not, if the language is inextricable, then the covenant is unenforceable.
  2. Does it ‘touch and concern’ the dominant land? What must be shown is that the benefit of the covenant is a benefit to the land concerned – its value, or enjoyment or physical state – and not merely a benefit to the owner. 
  3. Is the land which is to benefit adequately described? Sometimes the dominant land is not mentioned. If the dominant land is not obvious, and cannot be identified from extraneous evidence, then the covenant will not be enforced.
  4. Words of Annexation: Does the language tie the covenant to the benefited land? There must be words linking the covenant to the dominant land. 

Obsolescence

Where the original purpose of the covenant has long since passed, it is possible to apply to the Lands Tribunal to have the covenant discharged or modified. To succeed one must show that the covenant falls into one of the following categories: (a) it is obsolete; (b) reasonable use of the burdened land is impeded; (c) there is agreement with those entitled to the benefit that they will not be injured. Such applications are rare.

If you have a problem concerning a restrictive covenant or the threat of a breach of covenant, by all means, call me.

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