Can a covenant be lifted
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- COVENANT, BREACH, RESTRICTIVE, LANDOWNERS
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Have you wanted to find out if covenants can be lifted in the UK? Kent Property Witness offer RICS expert witness surveyor services for Tonbridge and Kent. This article asks: what are restrictive covenants? And how can landowners remove restrictive covenants?
How can landowners remove restrictive covenants?
Many landowners think that they can do nothing about the restrictive covenants they have tied to their land or property and can only abide by the obligations detailed within them. However, thankfully this is not the case.
For those wishing to alter or cancel the covenants on their land, the first thing to do is find out whether the covenant is still legally binding and can therefore be enforced.
If the person benefiting from the covenant cannot enforce it, the landowner can go to the Land Registry and have the covenant removed from their title deeds.
Another option is to contact the beneficiary party of the restrictive covenant and negotiate a change in the terms. If this is successful, the beneficiary can remove any obligations in the covenant and enter into a Deed of Release with you.
Of course, you could be asked to financially compensate the beneficiary and pay any legal fees to do this.
Landowners also have the ability to alter a restrictive covenant or even have it completely removed if they can prove the covenant is no longer applicable to the land it is tied to.
They will need to make an application to the Upper Tribunal Lands Chamber to do this. However, this process can often be very long, sometimes lasting years, and expensive to carry out.
The Lands Tribunal will then consider the case and the reasons put forward for altering or removing the restrictive covenant.
They will search through the history of the property and the surrounding neighbourhood to see what other changes have been made to the site. This is to determine whether the covenant limits any reasonable or beneficial developments that might otherwise be made.
What are restrictive covenants?
Restrictive covenants are typically placed on a property or piece of land to protect it or the surrounding neighbourhood.
This could range from what the house or property is used for, whether commercial or strictly residential, or even the colour palette and any modifications you might make to it.
Restrictive covenants attached to freehold land can also be used as an agreement between two landowners.
For example, they may agree that one person's land should be limited to mitigate damaging effects on the other. This again could include limits on any business or commercial activity and the construction of buildings.
What might a covenant restrict?
Restrictive covenants could control the appearance of properties or developments. This may include the building's height, size or number of properties built on a single site. Covenants could also restrict the activities that can take place on a piece of land or property, such as agricultural or construction work.
However, while covenants may limit what can and cannot be done on a certain site, it does not mean that those burdened by the obligations of the covenant cannot seek planning permission.
However, obtaining planning permission for alterations or new builds does not override the obligations set out in the restrictive covenants tied to the land or property.
What happens if you breach a restrictive covenant?
If you breach the terms of a restrictive covenant, and the beneficiary of the agreement discovers this, they are within their rights to object to the breach in court legally. Depending on the court's findings, there are several ways to resolve the breach of the covenant.
If the courts find that the breach contravenes details of the covenant, they can order an injunction that upholds the terms of the agreement. They may also decide to prohibit any further changes to the land, house or property or even order you to remove or demolish any work you have carried out in breach of the restrictive covenant. A final option may be to compensate the beneficiary party of the covenant financially by paying a fee.
One way to protect yourself from these consequences is to take out an indemnity insurance policy. This will cover your expenses against accidentally breaching the terms of your restrictive covenant enforced by the beneficiary. However, you will have to take out such a policy before the enforcement has begun.
Examples of common restrictive covenants:
Restricting certain activities or possible nuisances to neighbours.
Limiting the number of buildings you can construct or their type.
Restricting the use of the land or property to either purely residential or potentially commercial uses.
Preventing the owner of the property to modify or make specific alterations.
Preventing alterations that might negatively affect the value of the property or surrounding properties.
Limiting the type of business that you could conduct from the properties.
Mandatory adherence to existing building lines.
Restrictions to the height of the buildings on the site.
Restrictive covenants are tied directly to the land or property that they affect. Therefore, if the building is sold on again, the covenant still applies, just to the new owners. A prudent move for any future buyer is to have solicitors or conveyancing specialists check the property and any covenants attached to it.
Even if the property's current owner is unaware of any restrictive covenants, it should always be checked by a potential buyer. If you do not have a solicitor or conveyancer check for covenants, you may unintentionally wind up breaching them. This could ultimately mean you will have to undo any changes made to the land or property and may even face heavy fines, fees, or legal action.
How can I remove a restrictive covenant?
Even if you think you can remove the restrictive covenant from your land or property, you should still be prepared to pay compensation fees to the covenant's beneficiary.
Seeking the legal advice of a property specialist is the best way to ensure that the work you propose to carry out is allowed under the terms of any restrictive covenants. It would help if you did not assume that the court will decide in your favour even though the modifications have already been carried out.
They can order you to undo any work you have done. Additionally, the time it takes to alter or remove a restrictive covenant can be very lengthy, potentially lasting up to two years.
As the name suggests, these covenants can be very restrictive in your use of land or property that you own. That is why it is important to check if any exist on the site you wish to purchase before you buy. Even if you do find that your ideal site has restrictive covenants tied to it, the seller may be willing to alter or remove them to secure the sale.