“It’s my property and I can do whatever I want with it!”
As a property litigator, that is a phrase I hear all too often. But it is rarely the case. Putting aside other issues for now, such as whether the property is leasehold, or acts of nuisance, restrictive covenants on the property’s title may restrict the use of that property in certain ways, to benefit others.
Many people are surprised to learn that the original owners of their property, possibly decades previously, agreed to certain restrictions in the use of their property that catch not only themselves out but all future owners. This is because, depending on the circumstances, such covenants may ‘run with the land’ and bind not only the original contracting parties in the first conveyance, but any subsequent owners.
Think of the following examples:
- “Why can’t I build a conservatory? All my neighbours have got one!”
- “I just want a slightly taller fence. It’s no big deal.”
- “I work from home a lot these days, so I’ll just convert the garage into a home office.”
- “I just use my work van these days, so I park it on my drive at home.”
- “Everyone else hangs their washing outside in the summer.”
- “It’s a nice day, I’ll just burn this bit of old paperwork.”
None of these examples are in themselves unusual. We see most of these things every day of our lives. But if your property title contains covenants that prevent you from acting in that manner, your neighbours could seek to enforce those covenants.
In the most serious of cases, breaching those covenants could lead to Court proceedings for an injunction and/or substantial damages having to be paid.
Another obvious risk if you breach a restrictive covenant is that, when you come to sell your property in the future, you would legally have to declare those breaches to the buyers, which may cause a sale to collapse (or at the very least, you would be paying for an insurance policy for the buyers in order to protect them in the future).
Of course, times change, and what might have been unreasonable in 1924 may no longer be so in 2024. An application could therefore be made to the Property Tribunal to discharge or at least amend any problematic covenants so that, for example, a garage can be converted into a home office in spite of a covenant preventing it, or your work van can be parked on your driveway.
The Property Tribunal may be minded to grant such an application if:
- The covenant is obsolete (for example, changes in the character of the land or social attitudes mean that the covenant is now outdated);
- The covenant impedes reasonable use;
- There is an agreement between the parties to do so; or
- No injury will be caused to the party with the benefit of the covenant.
Alternatively, it may be possible to obtain an insurance policy to protect against a breach of restrictive covenant being enforced by a third party. If insurance is contemplated, it should be thoroughly investigated before any contact is made to any third party with the benefit of the covenant, otherwise, there is a high risk that the insurer will refuse the granting of a policy.
As usual, the strength of the parties’ position depends entirely on the circumstances of each case. There is no ‘one size fits all’ approach. Specialist legal advice should always be sought before embarking on either an application to the Property Tribunal to discharge/amend a covenant, or acting in a way that might breach a covenant. The costs of getting it wrong could be significant and put simply, doing nothing and hoping it all goes away is seldom the right path to tread.
