Answer: A covenant is essentially a promise to do, or not do, something on or to a property. A restrictive covenant is as it sounds; you are restricted from doing something. You can also get positive or affirmative covenants which tend to require you to do something, for example, to build a fence.
Why Are Covenants Used?
Covenants are often used by property developers so that they ensure that their estates look a certain way for as long as possible. For example, you may have a restrictive covenant on your property prohibiting TV satellites from being attached to the building. Developers are not the only people who can use a covenant, anyone selling land can impose restrictions on its future use.
What can a Covenant Cover?
A land owner can put whatever restrictive covenants they want on the land they are selling to you, but they have to be reasonable and capable of being adhered to.
The majority of covenants tend to be imposed by house builders; the most common are:
- Not to cause a nuisance to your neighbours
- Only to keep domestic pets or no pets at all
- Not to run a business - if your business is inconspicuous and doesn't cause disruption and there will not be a stream of customers blocking up the parking spaces then you should be okay. If in doubt, speak to your Conveyancer or the developer themselves and get their response in writing.
- Not to make any external alterations without the consent of the developer - this is the one that people most often violoate. Sometimes this covenant is worded to say that you can't do it at all, even if you ask for consent, so be very careful and check the wording. If the clause requires consent then even if you just want to change a window or the fascia boards - you have to ask for permission.
These are just a few common examples. It is up to you and your conveyancing solicitor to make sure that you read the covenants and abide by them. Once you have signed the transfer you are confirming that you have read and understood everything in it, leaving you no chance to say that you were unaware of the covenants in place.
Is There Any Way Around a Covenant?
One way is to apply to the developer (or the person that imposed the covenant) for covenant consent. This can sometimes prove a problem if the original developer is no longer in existence and your conveyancer needs to track down their successor in title. It can also be expensive as the developer has the right to charge a reasonable fee for their administration costs and to compensate them for the fact that you have breached their covenant in the first place.
If you are very lucky the original developer will have gone out of business and have no successor in title which makes the covenant null and void. This means that you don't have to worry about the covenant unless the transfer has been worded to allow your neighbours to enforce it (known as mutually enforceable covenant); your conveyancer will be able to advise you if this is the case.
Another option is to ask the original developer to enter into a deed of variation removing the covenant completely. This is expensive, time-consuming and only appropriate where the covenant is worded to completely prohibit the action taking place (that is, where there is no mention of getting consent first).
A Good Conveyancing Solicitor
The best thing to do is to rely on the expert advice of a conveyancing solicitor. If you need help finding a reliable expert in this area, call Northfields Estates on 0208 840 6666 and we would be happy to refer you to a solicitor who is an expert in this area.
Comments