Many residential properties are subject to restrictive covenants which may affect or limit the use of the property, but owners are often unaware of these covenants.
The original conveyance or transfer of a property will often contain binding promises or covenants by the new owner to do or not to do certain things. Restrictive covenants will be registered against the title to the property and, by definition, restrict or prohibit the action specified in the covenant. Some restrictive covenants date back many years, but the burden of these covenants may continue to run with the land and to be enforceable, unless formally varied or extinguished. It is therefore important that property owners are aware of any covenants which may affect their property and that they adhere these covenants throughout the duration of their ownership of the property.
From a buyer’s perspective, it is important to check that the current seller is not in breach of any restrictive covenant to which the property being sold may be subject, as it is possible that enforcement action could still be taken against the buyer/the property even though they were not responsible for the breach. It is not unusual for a seller to be unaware that they are in breach of a covenant.
Breaches of restrictive covenants are a common issue in residential conveyancing. Breaches typically occur where the written consent of the original transferor or their successor in title is required prior to making alterations to the property – such as the addition of a conservatory or other extension – but such consent is not obtained. If works have been carried out without such written consent within the last 20 years, then it may be necessary for the seller to obtain retrospective consent to the alterations to remedy the breach or obtain a suitable restrictive covenant indemnity insurance policy to cover the cost of any future enforcement action.
It is important to ensure that you are aware of any covenants which may affect your property and to obtain covenant consent for any alterations if required, in addition to any necessary planning consent and/or building regulations approval, before commencing any such works.