Restrictive covenants are provisions in deeds that serve to limit the use of a property, or restrict what can be done with that property. This can relate to you or your neighbour; for instance, if the way they are using their property affects you. The obligation to observe restrictive covenants passes with the property, meaning that when the property is sold, the restrictive covenant remains in place and the new owner “inherits” the burden. There are implications if the restrictive covenant has been breached without challenge for a number of years and in this article, breach of restrictive covenant over 20 years, we take a look at the process and mechanism involved.
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For a free initial discussion on how we can advise you on the implications of a breach of restrictive covenants over 20 years, get in touch with us today. We are experienced in dealing with all aspects of restrictive covenants and we will review your situation and discuss the options open to you in a clear and approachable manner. Early expert legal assistance can help ensure you avoid the stress of dealing with these issues on your own. Simply call us on 0345 901 0445 or click here to make a free enquiry and a member of the team will get back to you.
What are restrictive covenants?
Restrictive covenants are binding conditions that are written into a property’s deeds or contract by a seller to determine what an individual can or cannot do with their house or land under particular circumstances. They can cover a wide range of issues, but the most commonly encountered include:
- Stopping a trade or business operating on the land
- Stopping buildings being built on the land
- Stopping alterations being made to a property
- Not to cause nuisance or annoyance to neighbours
- Limitations on the numbers or types of animals that can be kept on the land
- Not to park caravans or commercial vehicles on the land
Do restrictive covenants apply to all types of property?
Restrictive covenants can be placed on older properties as well as new builds and the age of the covenant doesn’t necessarily affect its validity.
However, in some cases, very old covenants are considered unenforceable because the original landowner or builder cannot be traced because the wording is ambiguous and therefore difficult to apply or because the covenant has become historically obsolete.
What happens if I breach a restrictive covenant?
If you breach a restrictive covenant, the person with the benefit of the restrictive covenant can demand payment for their retrospective consent to the breach or apply to the court for damages, which could result in you having to pay out a substantial amount in compensation.
The person with the benefit of the restrictive covenant could also seek injunctive relief which would stop you from carrying out work. For example, if the restrictive covenant states that you cannot build on the land and you start building an extension, an injunction would force you to cease all building work. If the building work has already been completed, the court could order for the extension to be demolished.
What happens if the breach of covenant has existed for over 20 years without being challenged?
Generally, it is difficult to enforce a breach of covenant after 20 years. Every case is unique and it is advisable to use the services of an experienced solicitor to clarify the position.
In the event a restrictive covenant has been breached within the last 20 years, an indemnity policy can offer insurance-backed protection against the payment of damages, legal fees, demolishing and rebuilding, or any loss in value of the property. The price of indemnity insurance depends on the value of the property. It is vital however; that you read any indemnity policy in detail, to ensure it meets your demands and requirements.
Is it possible to remove a restrictive covenant?
If no insurance policy can be obtained, then owners could approach the person with the benefit of covenant in order to obtain ‘retrospective consent’ for work. If that person cannot be traced, refuses permission, seeks compensation for the breach or charges a fee that is prohibitive then an owner can apply to the Lands Chamber of the Upper Tribunal to modify or discharge restrictive covenants. However, this process can be both costly and time consuming with no guarantee of success. Even if you are successful, your costs will not be paid by the beneficiaries of the covenant. If their objection is successful, however, you may be forced to pay their costs.
How we can help
We have a proven track record of helping clients deal with breaches of restrictive covenants. We will guide you through the process and ensure all checks are carried out swiftly and efficiently and we firmly believe that with the right solicitors by your side, the entire process will seem more manageable and far less daunting.
How to Contact Our Commercial Property Solicitors
It is important for you to be well informed about the issues and possible implications of breaching or enforcing a restrictive covenant. However, expert legal support is crucial in terms of ensuring a positive outcome to your case.
To speak to our Commercial Property solicitors today, simply call us on 0345 901 0445, or click here to make a free enquiry. We are well known across the country and can assist wherever you are based. We also have offices based in Cheshire and London.
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