Enforceability of restrictive covenants—court declaration

Copyright © 2025 LexisNexis
Published by a LexisNexis Property Disputes expert
Practice notes

Enforceability of restrictive covenants—court declaration

Copyright © 2025 LexisNexis

Published by a LexisNexis Property Disputes expert

Practice notes
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For freehold and long leasehold land it is possible for any person interested to apply to the court for a declaration under section 84(2) of the Law of Property Act 1925 (LPA 1925) stating whether the land is affected by any restriction and, if so its:

  1. •

    nature

  2. •

    extent, and

  3. •

    enforceability

A ‘person interested’ who may make an application includes:

  1. •

    the freehold owner of the land benefitting from or burdened by the restrictive covenant

  2. •

    a mortgagee of such a freehold owner

  3. •

    a person contractually entitled to the land benefitting from or burdened by the restrictive covenant, or

  4. •

    a person with an interest under an option over land benefitting from or burdened by the restrictive covenant

The terms of s 84(2) are broad and can be used to test the validity or enforceability of restrictive covenants, potentially leading to those covenants which are plainly unenforceable being 'cleared off'. However, a declaration under s 84(2) operates in rem and effectively binds the land benefited by the restriction and all

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Jurisdiction(s):
United Kingdom
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Key definition:
Restrictive covenants definition
What does Restrictive covenants mean?

A covenant requiring the covenantor not to do the thing specified. In order to be enforceable, such provisions should be reasonable and necessary for the protection of the target company’s/target business’ legitimate business interests. Restrictive covenants in a SPA/APA restrict the seller’s activities during an agreed period so that the buyer can try and protect the value of the target company/target business being acquired.

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