Carolyn Bunn, Associate Solicitor at Spire Solicitors LLP, discusses the legal term known as a covenant.
A covenant is a promise made in relation to the property. It can either be a promise to do something (a positive covenant) or , not to do something (a restrictive covenant).
Can you give me an example of a positive covenant?
Most commonly in residential property a positive covenant would be a covenant to maintain a boundary fence or wall, a covenant to contribute momentarily towards the cost of maintaining a shared drain or a shared driveway, or an obligation to carry out the work.
What then are the restrictive covenants?
A restrictive covenant requires the land owner not to do a specified thing whether it is building or using the land for a particular purpose. Unlike positive covenants the burden of a restrictive covenant is capable of running with the land so that successive owners or occupiers remain bound by the restriction. Covenants imposed years ago may still exist and still be enforceable which can potentially restrict the use of land.
Who has the benefit of these covenants?
It can be extremely difficult to identify who has the benefit of a restrictive covenant. Even where the initial description is clear, the sale of land in parts can produce a situation in which the benefit is (notionally at least) divided amongst a larger number of owners and occupiers e.g. sales of properties on a large estate as discussed above.
What are the remedies for enforcement of a restrictive covenant?
The Lands Chamber of the Upper Tribunal (previously the Lands Tribunal) has jurisdiction to discharge or modify a restrictive covenant but not (at present) a positive one. An applicant for the discharge of a covenant would have to prove grounds set out in the Law of Property Act. The most commonly used grounds are that the covenant has become obsolete or that it impedes reasonable use or development.
For more information, contact Spire Solicitors LLP on 01603 677077.