What is a property covenant?

Buyers should be on the look out for property covenants. They could get in the way of plans you might have for a property, and if you breach a covenant it could cost you a lot of money.

What is a covenant?

A covenant is a legal obligation contained in the title deeds to a property that a new owner must abide by. Their application is usually in perpetuity, so buyers should be aware of any covenants affecting the property they are considering buying.

The different types of covenants

There are two kinds of covenant – positive and restrictive.

Positive covenant

Positive covenants are obligations which title deeds enforce on the landowners. In legal terms these are called ‘burdens’, and usually mean the future owners have to perform an activity or contribute financially to something within the boundaries of the land. There are usually two parties to a positive covenant, with an individual or organisation having the ‘benefit of the covenant’.

Restrictive covenant

This is the more common kind of covenant. A restrictive covenant puts limits on what the owners of the land can do within its boundaries. It will specify certain activities or alterations that are not permitted. These are often things like building work. There will also usually be a party that benefits from the restrictive covenant and has a right to enforce the covenant.

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Common examples of covenants

The most common form of restrictive covenant include:

• Preventing alterations to a property e.g. building an extension or converting a house into flats
• Preventing buildings or other substantial structures from being built on a section of land
• Preventing trades or businesses from operating on the land or within the property
• Preventing the keeping of livestock on a property

Examples of positive covenants include:

• Maintaining a fence or a shared driveway
• Repairing a shared roof

Why are covenants needed?

Covenants are used by landowners to give some control over how the land they are selling will be used or will look like. They may date from the time when an initial sale of land is made, perhaps from a greenfield site to a residential development. The person or party selling the land may insert a restrictive covenant to ensure that the area remains purely residential, or that building alterations, if permitted, are true to the character of the area.

What happens if you break a covenant?

This will depend on the covenant you breach but doing so could mean the expense of undoing large projects (such as extensions) because the covenant doesn’t permit them. You might also have to pay a fee or face legal action. That is why it is so important that you know what your property deeds say before you build an extension or plan large-scale changes to your property.

Can you change or remove covenants?

If you discover a covenant on your property deeds and think it is unreasonable, you can make an application to the Lands Chamber of the Upper Tribunal to have it modified or discharged, but this can be costly and time consuming. In some cases, because the person who benefits from the covenant being in place will face losses from its removal, you may have to pay compensation, as well as legal fees.

Frequently asked questions

How to find covenants on property

When you are buying a property, ask your conveyancer to look at the property title deeds thoroughly and tell you if they find any covenants. Because once you sign the deeds, these covenants are your responsibility as they are applicable to all purchasers of the property, not just the original one. If you breach a covenant, even if you didn’t know about it, you will be liable.

Should I buy a house with a restrictive covenant?

It depends on the nature of the restrictive covenant. If it is something that you weren’t planning on doing anyway, such as building alterations, then it should not affect your decision to buy the property. But if you have bought a property with a significant piece of land attached to it, you may at some point consider building on that land. If that is the case, check for the existence of restrictive covenants.

Are covenants legally binding?

As long as they have been set up properly, covenants are legally enforceable. It is worth checking if a covenant ‘runs with the land’ – eg. it applies to all future owners – or was just enforceable on the first owner.

How long does a covenant last on a property?

Covenants do not expire – they exist in perpetuity. So just because a covenant dates from the 19^th century or even earlier, it does not mean it has lost its legal status.

However, in some cases very old covenants are considered unenforceable. Some date from the very distant past and relate to archaic practices or have been made irrelevant by subsequent developments. For example, the original landowner or builder cannot be traced, the wording of the covenant is unclear and therefore difficult to apply, or the covenant has become historically obsolete.

What does deed of covenant mean?

A deed of covenant is a legal document in which the party burdened with a covenant promises to carry out the obligations of the covenant.

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