Restrictive covenants—nature and characteristics
Restrictive covenants—nature and characteristics

The following Property practice note provides comprehensive and up to date legal information covering:

  • Restrictive covenants—nature and characteristics
  • Transmission of burden
  • Negative or restrictive in nature
  • Ascertainable retained land capable of benefitting
  • Intention to bind successors in title
  • Transmission of benefit
  • Touching and concerning
  • Building schemes
  • What is a building scheme?
  • Key requirements for a building scheme
  • More...

Covenants restricting the use of land imposed by a seller may be divided into three classes:

  1. covenants imposed for the seller’s own benefit

  2. covenants imposed as owner of other land, of which the land sold formed a part, and intended to protect or benefit the unsold land

  3. covenants on a sale of land to various buyers who, with their respective successors in title, are intended mutually to enjoy the benefit of, and be bound by, the covenants

The first category of covenants is personal to the seller and only enforceable by them, unless expressly assigned.

For example, in Cosmichome, a covenant which required property to be solely occupied by the buyer for a specified purpose, and subject to removal in return for overage payment, was not intended to protect or benefit the seller’s land.

The second category ‘run’ with the land and are enforceable without express assignment by the owner for the time being of the land for the benefit of which they were imposed. This Practice Note concentrates on this category of restrictive covenants.

The third category is most usually found in sales under building schemes. They are enforceable where it was the parties' intention that the various buyers from a common vendor of parts of a defined area of land should have rights to enforce the covenants against each other. For more information, see ‘Building schemes’

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