Q&As

Is it possible to include a restrictive covenant or an agreement in a transfer whereby the transferee covenants or agrees not to object to a potential nuisance caused by the transferor?

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Published on LexisPSL on 09/05/2018

The following Property Q&A provides comprehensive and up to date legal information covering:

  • Is it possible to include a restrictive covenant or an agreement in a transfer whereby the transferee covenants or agrees not to object to a potential nuisance caused by the transferor?
  • Restrictive covenants
  • Nuisance
  • Agreement not to object

Is it possible to include a restrictive covenant or an agreement in a transfer whereby the transferee covenants or agrees not to object to a potential nuisance caused by the transferor?

Restrictive covenants

A restrictive covenant requires the covenantor not to do the thing specified, whether that is building on or using the land for particular purposes. We have found no authority on whether this could include not to object to the use of land in a certain way. Covenants restricting the use of land imposed by a seller include covenants imposed for the seller’s own benefit.

For restrictive covenants affecting registered land, a notice must be entered in the charges register of the burdened land. Where there is no entry on the register, subsequent registered proprietors will take free of the covenants.

For more information on restrictive covenants, see: Restrictive covenants—overview and specifically:

  1. Practice Note: Restrictive covenants—nature and characteristics

  2. Restrictive covenants: general: Encyclopaedia of Forms and Precedents [66], and

  3. Nature of restrictive covenants relating to freehold property: Atkin's Court Forms [2]

Nuisance

A covenant that restricts ‘nuisance’ is concerned with the prevention of activities that may be or become an actionable nuisance. A private nuisance, as raised in this Q&A, is an interference with the use or enjoyment of land that causes injury in relation to an ownership right in that land. Private nuisance normally involves interference with the

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