How long do covenants on property last
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- COVENANT, RESTRICTIVE, ENFORCED
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How long do covenants on property last UK? Kent Property Witness offer RICS expert witness surveyor services for Tonbridge and Kent. We look at what restrictions are involved in a covenant and how they are tied to the land. Find out if you can be released from a restrictive covenant.
What is a restrictive covenant?
A restrictive covenant is a legal obligation, usually in the form of a contract, controlling what a landowner can do with their piece of land or property on it.
Every covenant has two parties: the person who is restricted by the terms of the covenant and the person who benefits from the terms, i.e. the beneficiary. Restrictive covenants are typically created during the sale of a piece of land as a contractual agreement between a buyer and a seller.
As long as the covenant is worded correctly, it will still apply to the land it affects, even if it is sold again. That is, so long as the covenant is not discharged or modified while it is in action. Given that they are a legal obligation, the restrictive covenant terms are enforceable through the courts.
What restrictions are involved?
A restrictive covenant can limit many things regarding the property it is tied to. Examples of restrictive covenants include aesthetic changes to the house, such as its height or size, to the uses of the property, such as those that are strictly residential.
Restrictive covenants do not affect planning permission applications, but the planning permission will not excuse the restrictive covenant.
Are Restrictive covenants tied to the land?
Restrictive covenants are entirely tied to the land and will not move with the landowner should they choose to sell. It also does not matter if a buyer is aware of any obligations tied to the land when purchasing it.
They must still adhere to the restrictions detailed in the land's covenants all the same.
This often leads to strange situations where buyers are subject to obligations created decades, even centuries, before.
The Guardian reported a story about the owners of Edwardian properties in Brighton, who were prohibited from displaying their washing in 'a lewd and lascivious manner.
You can therefore see how covenants that are tied to property and land can have unexpected consequences.
Under certain circumstances, the Upper Tribunal's Lands Chamber has the power to alter or cancel restrictive covenants.
To consider any alteration or cancellation, applicants must demonstrate to the Lands Chamber that the Law of Property Act 1925, s 84 applies to their specific case.
There are two main reasons why a covenant may be changed or removed. The first is that the limitations or obligations detailed in the paperwork are no longer relevant for the land.
The second is that the details of the covenant hamper any normal use of the land. The buyer or applicant attempting to change the covenant must pay a compensation fee for the change.
Can I negotiate a release from a restrictive covenant?
It is possible to organise a release from the obligations of a restrictive covenant on your property. The first step in arranging this is to negotiate with the original owner or developer who created the covenant.
Together you may come to a formal agreement to remove the covenant from your house. However, it would be best if you were prepared to pay a fee to remove it and cover any legal costs.
Of course, it is not always possible to enter into negotiations with the creator of the restrictive covenant. In this case, you would have to take your application to the Upper Tribunal.
Not being able to talk with the original creator may mean that the covenant applicable to your property is no longer relevant to its uses. Applications through the Upper Tribunal can often take a long time and be quite costly.
Given that covenants are a legally binding obligation, it can often be best to seek the advice of lawyers or solicitors if you plan to change them. There are law practices that specialise in property obligations, including restrictive covenants, which can assist you in removing redundant covenants from your property.
Are Covenants strictly enforced?
Breaches of covenants are, pejoratively, difficult to enforce, especially if a considerable period of time has passed since the breach occurred.
The Limitation Act of 1980 states that any land claims need to be made within 12 years. That is 12 years from when the breach was first committed, not the date on which the developer made the covenant.
Certain technicalities could make it especially tricky to enforce the covenant if particular circumstances arise.
For example, if the land to which the covenant applies is not registered, and the developer failed to arrange for the appropriate legal protection, taking legal action can be difficult.
Even if the property is appropriately protected, it is still worth checking with the Charges Register. You should find references to any covenants applicable to your property and whether they became binding from any previous title deeds within this register.
If you are planning to buy or sell a property, it is always best to take legal advice from a qualified lawyer on the matter.
They can make you aware of any potential covenants tied to the property and whether any restrictive covenants will obligate you in any way. It would be best if you saw that your lawyer was a property law specialist so that you can receive the best and most appropriate advice.
How to protect you against a restrictive covenant?
Several insurance companies offer specific cover against potentially breaching a restrictive covenant.
Given what we already know, when you purchase a piece of land or property without checking, there is always the risk that you might inadvertently breach a covenant created many years ago. However, breaching more recent covenants is also just as likely.
An indemnity insurance policy is the best way to protect yourself against the risk of these accidental breaches.
For example, if the restrictive covenant tied to your property requires you to ask the previous owner's consent, but you cannot contact them, arranging indemnity insurance to protect yourself is your safest option. However, this protection will only apply if the extension work you have undertaken remains unchallenged for at least 12 months.
How long do property covenants last?
There is potentially no limit to the time over which a covenant may last regarding property or land. For example, if the specific covenant covering your property is said to 'run with the land, this means the covenant will last whether the burdened land or neighbouring land has been sold or not.
Even if the purpose of the property to which the covenant refers no longer applies, the covenant may still be enforced. Again, suppose you need the restrictive covenant altered or removed from your land or property. In that case, you will have to either negotiate with the previous owners to have them changed or take your application to the Lands Tribunal. You will also have to put aside some money to pay for any administrative or legal fees required when making these changes.