A restrictive covenant is a restriction on land that states what the owner can and cannot legally do on it. Essentially, restrictive covenants burden the land/property and are registered on the title deeds of the land/property.
A restrictive covenant is enforceable by the party who owns the land which has the benefit of the covenant (usually a neighbouring landowner, perhaps the original owner of the land/property – if they sold the land and retained some adjoining land and wished to control what could be done on the land sold).
What are one dwelling per plot restrictive covenants?
Often, restrictive covenants are placed on land which limit the number of dwellings permitted. This type of covenant means that a person or property developer looking to build multiple homes will be restricted and this can make such areas of land unattractive to developers.
It is important to understand that planning permission and restrictive covenants are two entirely separate things – it is possible for planning permission for multiple dwellings to be granted, notwithstanding the existence of a restrictive covenant.
Should planning permission be obtained and the landowner choose to go ahead with building multiple dwellings on the restricted land, then the parties with the benefit of the restrictive covenant could object to the development. The objection could be on a number of grounds, including that the development would have a negative impact on the valuation of their own homes or it would affect their own view from their property.
Ignoring restrictive covenants could result in the landowner paying substantial financial damages to those who benefit from it or even suffering an injunction blocking the development.
Can I modify a restrictive covenant?
It is possible to modify a restrictive covenant. But, it very much depends on the circumstances. All applications must be made to the Upper Tribunal (Lands Chamber) under section 84(1)(aa) and/or (c) of the Law of Property Act 1925.
For the application to be successful, the party making it will have to satisfy one of the following grounds:
- Ground A – the covenant is no longer applicable, or should be considered obsolete, due to the character of the area/neighbourhood changing. Alternatively, the Upper Tribunal could decide to make the covenant obsolete for other reasons, which can vary depending on the land and the situation.
- Ground AA – it hinders a person attempting to use or cross the land, or could hinder them should the covenant remain unchanged. For the modification application to be successful, the hindrance caused by the covenant must not bring any practical benefits of financial value or another form of advantage to those benefitting from it. If the covenant is modified, compensation for the loss suffered as a result would be paid by the land owner to the persons who in the past benefitted from it.
- Ground B – the person or group who currently benefit from the covenant have agreed with the land owner to its modification or to remove it completely.
- Ground C – the removal or modification of the covenant would not injure the person or group with the benefit of it. In order for the Upper Tribunal to approve the application to modify the covenant, it will have to be satisfied that the practical effects of it in the long-term and the value of any injury sustained to the person or group that previously gained an advantage from it.
How Nelsons can help
If you require any advice in relation to the topics discussed in this article, then please contact Martin Jinks in our expert Commercial Property team or another member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online form.