Example of a restrictive covenant
One common example of a restrictive covenant is a rule that stops you from building new structures on your property. If you live in a neighbourhood full of detached houses, there could be a covenant preventing you from converting your home into flats or building a second property in your garden. This is often done to maintain the neighbourhood’s character and avoid overcrowding.
A different covenant might put restrictions on running a business from your home. While working from home in an office is usually fine, a covenant might stop you from running a more disruptive business, like a mechanic’s garage, from your driveway. The goal here is to make sure the residential feel of the neighbourhood stays intact.
You’ll also find covenants in rural areas that restrict things like farming or keeping certain animals on your property. These kinds of rules exist to ensure the land remains used for its intended purpose – residential, not agricultural. There are even covenants that might stop you from making changes to the exterior of your house, like adding an extension or altering the look of your front garden, to maintain a uniform appearance in the area.
Get the latest news and insight into how the Big Issue magazine is made by signing up for the Inside Big Issue newsletter
When dealing with restrictive covenants, one of the most important aspects is how they impact not only your property, but your long-term plans for it. Covenants can vary from mild inconveniences to major roadblocks depending on what you hope to do with your home. Some covenants may only restrict relatively minor activities, like painting your house a certain colour or putting up a particular type of fence, while others can significantly restrict your ability to develop the property, such as banning extensions or extra buildings entirely.
If you’re planning major changes, such as building a new garage or adding a conservatory, a restrictive covenant could seriously derail those plans – so it’s worth considering the long-term financial implications of a covenant. While some buyers may not mind smaller restrictions, a property with significant covenants can be less attractive to future buyers, making it harder to sell in future. This is especially true if neighbouring properties don’t face similar restrictions and have more freedom to develop or alter their homes.
Restrictive covenants often play an interesting role in the commercial use of land too, even having implications on a community’s cost of living. Supermarkets Morrisons and Marks and Spencer landed themselves in hot water last year after they were found to have repeatedly imposed restrictive covenants on land which would mean competitors couldn’t open stores near theirs for decades to come – a practice already banned by the Groceries Market Investigation (Controlled Land) Order 2010.
“At a time when the weekly shop is a source of financial pressure for many families, it’s crucial that competition between supermarkets is working well to help people get the best deals they can,” said Adam Land for the Competition and Markets Authority.
“Our continued crackdown on these unlawful restrictions is part of our wider action to tackle the cost of living and ensure that people benefit from more competition and choice.”
Breaching a restrictive covenant
Ignoring a restrictive covenant can lead to serious issues, whether it was accidental or knowing. In the worst-case scenario, you could be taken to court by someone who benefits from the covenant, like a neighbour or the original developer who put the covenant in place.
If the matter goes to court, they could issue an injunction, which is essentially a legal order to stop what you’re doing. This might mean halting any construction work you’ve started or taking down an extension you’ve already built if it breaks the rules. The court might award damages in some cases, which means you’d have to pay compensation for breaching the covenant.
People sometimes don’t realise they’ve breached a covenant. If you buy a property without checking the fine print for restrictive covenants, you might go ahead with your home improvement plans and only find out later that you’re in breach.
That said, not all breaches lead to immediate legal trouble. If the covenant was put in place a long time ago and hasn’t been actively enforced, it’s possible no one will pursue the issue. But don’t count on that – just because the covenant hasn’t been enforced yet doesn’t mean it won’t be. To avoid getting into legal hot water, it’s a good idea to check with a solicitor before making any changes that might go against a restrictive covenant.
In the case of Fosse Urban Projects Ltd v Whyte & Ors in 2023, the developer built on land despite a covenant restricting its use to garden land. The court rejected the developer’s application to remove the covenant, partly because the work had already been completed. The case served as a warning to those trying a build first, apply later approach – you may well be told to demolish an expensive project you already finished.
Can a restrictive covenant be removed?
Restrictive covenants can be a real headache, especially if they stop you from making changes you want to your property. The good news is that removing a restrictive covenant is possible, though it’s not always an easy process.
One option is to get permission from whoever benefits from the covenant. That might mean asking a neighbour or developer who placed the restriction on your property to remove or modify it. This could come with a price, however, as some people will want some form of compensation for giving up their legal rights.
Alternatively, you can apply to the First-tier Tribunal to have the covenant removed or changed. The court can decide if a covenant is outdated, too restrictive, or stops you from using your property in a reasonable way. The covenant might have been originally put in place to stop farming in a now fully residential area, for example, in which case you would have a good case for having it removed.
However removing a restrictive covenant can be a long and potentially expensive process. You’ll likely need legal advice and a strong argument to succeed, so make sure you weigh the pros and cons before going down this route.
Can a neighbour enforce a restrictive covenant?
Neighbours often do have the right to enforce a covenant, particularly if it affects them directly. If a covenant was set up to stop homeowners from building tall extensions that might block their neighbour’s view, for example, the neighbour could enforce the covenant if you start building something that goes against it.
But taking legal action to enforce a covenant can be time-consuming and expensive, so most people only resort to it if they feel their property or quality of life is seriously affected.
How much does it cost to enforce a restrictive covenant?
The cost of enforcing a restrictive covenant can add up quickly. Depending on the complexity of the case and the lawyers involved, you could be looking at anywhere from a few thousand pounds to tens of thousands. You might be able to recover some of these costs if you win, but if you lose you could be responsible for paying both your own legal fees and those of the other party.
How long does a restrictive covenant last?
One of the tricky things about restrictive covenants is that they often last indefinitely. Since the covenant is tied to the land, not the owner, it remains in place even if the property is sold or changes hands multiple times. In some cases, covenants can last for decades or even centuries.
That said, a restrictive covenant might become obsolete over time, in which case you might be able to get it removed or modified through the tribunal process.
But until the covenant is officially removed, it’s enforceable. This is why it’s so important to understand any covenants on a property before buying and to seek legal advice if you’re unsure.
Do you have a story to tell or opinions to share about this? Get in touch and tell us more. Big Issue exists to give homeless and marginalised people the opportunity to earn an income. To support our work buy a copy of the magazine or get the app from the App Store or Google Play.
