Covenants: What are they?
When a land owner sells a piece of land he can require that the buyer and all future owners to be restricted in what they can or cannot do on the land sold including any redevelopment. These are called covenants and they will be found on the majority of titles. With the increase in infill developments and sub-division of land creating smaller plots for houses or flats or town house developments and the ever increasing demand for building land, covenants are fast becoming more and more important both to the land owners and to those wishing to carry out re-development.
Covenants are very varied in their nature and, amongst other things, can restrict future development, control the appearance of future developments and control what activities are carried out on land.
Some covenants that appear on owners titles may be unenforceable or obsolete.
Where the enforceability of a covenant is unclear or the people able to enforce such covenants are not known, it is sometimes possible to insure against those covenants being enforceable and there being somebody able to enforce them.
There are many technical and legal issues dictating whether or not a covenant is still enforceable. The main ones are as follows:
- The person seeking to uphold the covenant must be able to prove that they are the person entitled to enforce them.
- They must be able to identify a specific area of land owned by them which holds the benefit of the covenant and is still capable of reaping the benefit of the original covenant.
- They must be able to show the precise area of land which is the subject of the covenant.
- There are different “rules” for “restrictive” or “negative covenants”, for example not to do something, or “positive” covenants, to do something on the property.
It can be very difficult when looking at old covenants to show the succession of people entitled to the piece of land which has the benefit of the covenants and it is often also difficult to show the precise area of land which is the subject to the covenant.
One of the other interesting facts about covenants is that the Land Registry only note covenants against the land that is burdened by the covenant and is subject to it. They do not provide any notice of the covenants of the title to the land which has the benefit. You cannot, therefore, just by looking at your deeds, tell whether you hold covenants over your neighbours land.
Ellis Jones’ Property Team are able to undertake that research for you and confirm whether or not you could have the benefit of covenants over a neighbours property and could enforce these covenants against that neighbour or if your property is subject to covenants that someone could enforce against you!