Expert legal advice on restrictive covenants — enforceability, Upper Tribunal applications to discharge or modify, injunctions to enforce or prevent breach, and covenant indemnity insurance.
A restrictive covenant is a legally binding obligation attached to land that restricts how the owner can use it. Restrictive covenants are created in conveyances and transfers and can survive indefinitely — binding not just the original parties but all future owners of the land. A covenant imposed in a Victorian conveyance can still prevent development or restrict use of a property today.
Restrictive covenants are one of the most common obstacles encountered in property development, sale, and purchase. Legal Merchant's specialist solicitors advise developers, landowners, and buyers on all aspects of restrictive covenant law throughout England and Wales.
Old Covenants Can Still Bite. A restrictive covenant does not become unenforceable simply because it is old, or because it has been ignored for years. Provided the conditions for enforcement are met and the benefit of the covenant has passed with the benefiting land, a 100-year-old covenant can still be enforced — and can prevent development, block a sale, or result in a mandatory injunction to demolish completed works.
What Is a Restrictive Covenant?
A restrictive covenant is a negative obligation — it requires the owner of the burdened land to refrain from doing something. Common examples include:
A covenant not to build any further buildings on the land
A covenant not to use the property for commercial or business purposes
A covenant not to build above a certain height
A covenant not to subdivide or convert the property
A covenant not to erect any fence or wall without consent
A covenant to use the property as a single private dwelling only
A covenant not to carry out any alterations without the approval of the original developer
Restrictive covenants should not be confused with positive covenants (obligations to do something, such as to maintain a shared road) — positive covenants do not generally bind successors in title in the same way, though they can be indirectly enforced through other mechanisms.
When Is a Restrictive Covenant Enforceable?
For a restrictive covenant to be enforceable against a successor in title (i.e., someone who was not the original covenantor), all of the following conditions must be satisfied:
1. Negative in Nature
The covenant must be truly restrictive — requiring the owner to abstain from doing something, not to carry out an act. Positive obligations (requiring expenditure of money or positive action) do not run with the land at common law.
2. Benefit Retained
The covenant must have been taken for the benefit of land retained by the covenantee at the time the covenant was imposed — and that benefiting land must still exist. A covenant imposed purely for personal benefit does not run with land.
3. Benefit Has Passed
The benefit of the covenant must have passed to the current owner of the benefiting land — either by annexation (express, statutory or implied), assignment, or as part of a building scheme. Without this, the current neighbour cannot enforce.
4. Burden Has Passed
The burden of the covenant must have passed to the current owner of the burdened land — in equity, under the rule in Tulk v Moxhay. The covenant must be negative, the burdened owner must have taken with notice, and the covenant must "touch and concern" the land.
5. Registered or Noted
For registered land, the restrictive covenant must be entered as a restriction or notice on the burdened title at HM Land Registry to bind a purchaser for value. An unregistered covenant will not bind a buyer who has no notice of it.
6. Touches and Concerns Land
The covenant must "touch and concern" the land — i.e., it must relate to the use or value of the land itself, not be a purely personal obligation. Most use and development restrictions satisfy this requirement.
Challenging an Unenforceable Covenant
Where a covenant does not satisfy all the conditions above, it may be unenforceable. Common grounds for challenging enforceability include:
The benefit has not been properly annexed to or assigned with the benefiting land
The benefiting land no longer exists as a separate entity (e.g., it was merged with other land)
The covenant was imposed purely for personal benefit with no identifiable benefiting land
The covenant was never registered or noted at the Land Registry against the burdened title
The covenant has been abandoned through long acquiescence in breaches
The character of the neighbourhood has so changed that the covenant no longer serves any useful purpose
Our solicitors advise developers and landowners on whether a covenant is truly enforceable before committing to development or triggering a dispute.
Under section 84 of the Law of Property Act 1925, the Upper Tribunal (Lands Chamber) has power to discharge or modify a restrictive covenant on any of the following grounds:
Ground (a) — the covenant is obsolete due to changes in the character of the property or the neighbourhood, or other circumstances, that make it unreasonable to uphold
Ground (aa) — the continued existence of the covenant impedes some reasonable use of the land for public or private purposes, and either the restriction gives no practical benefit of substantial value or advantage, or the restriction is contrary to the public interest — and money would be an adequate substitute for loss
Ground (b) — the persons entitled to the benefit of the covenant have expressly or impliedly agreed to the discharge or modification
Ground (c) — the proposed discharge or modification will not injure the persons entitled to the benefit of the covenant
Section 84 applications can be contested and lengthy. Our solicitors prepare and present applications to the Upper Tribunal and defend against applications seeking to remove covenants that benefit our clients' land.
Deed of Release
Where the owner(s) of the benefiting land can be identified and are willing to release the covenant, a deed of release is the simplest solution. The covenantee (or their successors) execute a deed releasing the covenant, which is then noted at HM Land Registry. Our solicitors negotiate and draft deeds of release and advise on any compensation or consideration payable.
Covenant Indemnity Insurance
Where the covenant appears to be enforceable but there is no willing covenantee who can be approached, or where the risk of enforcement is considered low, restrictive covenant indemnity insurance provides protection against future claims. This is commonly used on conveyancing transactions to facilitate sales without waiting for a formal discharge. Our solicitors advise on whether insurance is appropriate and obtain quotes from specialist insurers.
Enforcing a Restrictive Covenant
If you are the owner of land that benefits from a restrictive covenant and a neighbour is breaching it, your remedies include:
Injunction — an order requiring the covenantor to stop the breach (mandatory injunction to demolish, or prohibitory injunction to prevent construction). Courts grant injunctions where damages are an inadequate remedy — typically where the breach is ongoing or threatens permanent damage.
Damages — compensation for loss caused by the breach. In some cases (where an injunction is refused on the basis that damages are adequate), the court awards damages assessed on the "Wrotham Park" basis — a percentage of the profits the covenantor has made from the breach.
Declaration — a court declaration that the covenant is valid and enforceable, clarifying the legal position for both parties.
Frequently Asked Questions
Restrictive covenants are revealed by a search of the property's title at HM Land Registry. For registered land, covenants are listed in the Charges Register (section C) of the title register. For unregistered land, covenants are contained in the title deeds. When you purchased the property, your solicitor should have reviewed the title and reported on any covenants. If you no longer have this information, you (or your solicitor) can obtain official copies of the title register and title plan from Land Registry for a small fee. Our solicitors review titles and advise on the nature and enforceability of any covenants disclosed.
If your neighbour has completed a build in breach of a restrictive covenant that benefits your land, you may be entitled to seek an injunction requiring demolition, or to claim damages. Courts have the discretion to refuse an injunction where the breach is minor and damages would be an adequate remedy — but where the covenant confers a real practical benefit, injunctions are regularly granted even after construction is complete. Acting promptly is important: delay can weigh against granting an injunction. Our solicitors advise on the enforceability of the covenant and the remedies available in your specific circumstances.
No. Planning permission and restrictive covenants are entirely separate legal regimes. Obtaining planning permission does not give you permission to breach a restrictive covenant, and it does not make a covenant unenforceable. Many developers have obtained planning permission and commenced construction only to face injunctions from neighbouring landowners enforcing restrictive covenants. You must address both planning requirements and any restrictive covenants before commencing development. Our solicitors advise developers on identifying and resolving covenant issues before or concurrently with the planning process.