Restrictive covenants

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Featured Property content

Constructive trusts

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Practice notes

Pre-completion searches

Official search with priority—registered land or seller’s title pending first registrationHow and when to search?An official search with priority will...

9th Nov

Practice notes

Rent deposit deeds—common structures

What is a rent deposit?A rent deposit is a sum of money that is deposited by a tenant when it takes a lease of premises as security against the...

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Practice notes

Headline rents

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Practice notes

The ‘ad medium filum’ rule

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Precedents

Specific clauses for transfers—indemnity covenant

Panel 11 (transfer of whole)/panel 12 (transfer of part)—Additional provisions1Definitions[Lease•the lease particulars of which are set out in...

9th Nov

Precedents

Deed of grant of easements

This Deed is made on [insert date]PARTIES1[insert name of the owner of the Servient Land] [ of [insert address] OR incorporated in England and Wales...

9th Nov

Practice notes

Letter/certificate of non-crystallisation in property transactions

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Practice notes

Applying the proceeds of sale

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Practice notes

Guide to reviewing certificate of title

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Precedents

Template completion statement—sale

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9th Nov

Precedents

Grant of a right for overhanging eaves

1 The Grantor grants to the Grantee the right for the Grantee and his successors in title as owners or occupiers for the time being of...

9th Nov

Q&As

Does the doctrine of unity of seisin apply as between two parcels of land held under one title (residential part and retained part) where—a owns the whole property and transfers the beneficial interest in the residential part to B under a lifetime trust? A and C jointly own the whole property and transfer the beneficial interest in residential part to B under a lifetime trust, A and C retain the legal interest in the residential part and A retains sole legal and beneficial interest in the retained part?

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Practice notes

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Practice notes

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Precedents

Disclosable overriding interests questionnaire

You are applying for registration of [insert details of property] at HM Land Registry and as part of that application you must disclose any overriding...

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Practice notes

Differences—joint insured and noting

Joint insuranceJoint insurance arises where two or more people insure separate insurable interests in the same property with the same insurer under a...

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Most recent Restrictive covenants content

Q&As

Would it be a breach of the following covenant to use the property for holiday lets: ‘Not to use or permit to be used the property for the carrying on of any trade or business whatsoever and will use the same as a single private dwelling house only’?

If the lease states that the flat can only be used as a private residential property, then it would be a breach of the lease to use the property for...

22nd Jan

Q&As

Does a restrictive covenant prohibiting the use of a property as a hairdresser shop, prohibit its use as a barbershop?

It is not always clear cut when it comes to interpreting the language and meaning of a restrictive covenant, and each case will turn on its own facts....

Produced in partnership with Georgia Whiting of 4 King’s Bench Walk 22nd Jan

Q&As

What fees can be charged for granting consent under a freehold restrictive covenant? Are these limited to reasonable fees in line with the limitations placed on landlords?

The first consideration is the wording of the covenant itself. On the assumption that the covenant does not identify specific heads of expenditure...

22nd Jan

Q&As

In relation to a restrictive covenant: (1) what is the meaning of ‘persons deriving title’, does it include successors in title, tenants, heirs etc, (2) what is the meaning of ‘private dwelling house’ and is there a difference in meaning between this and ‘private residence’, and (3) would a restrictive covenant not to use for a ‘private dwelling house’ or a restrictive covenant not to use for a ‘private residence’ preclude use as a block of flats?

Persons deriving titleSections 78 and 79 of the Law of Property Act 1925 (LPA 1925) refer to both ‘successors in title’ and ‘those deriving title...

22nd Jan

Q&As

Would use of a property by one of the family members (a registered childminder) as a childminding facility for the children she looks after be a breach of the restrictive covenant on the title to the property requiring that it is not to be used 'otherwise than as a single private residence only'?

Leases frequently define the use of the property in question, often including limitations in respect of residential occupation or business use. When...

Produced in partnership with Georgia Whiting of 4 King’s Bench Walk 22nd Jan

Q&As

Is it necessary, when entering into any covenants relating to property, for those covenants to be granted by deed or can such covenants be validly granted pursuant to a contract entered into by the parties under hand?

Covenants relating to propertyA covenant is an agreement between parties that one or some of them is bound to do or not to do a specified thing. For...

Produced in partnership with Alex Campbell of Arden Chambers 22nd Jan

Q&As

Registered land is subject to unascertainable restrictive covenants in favour of a water company imposed at the time of a previous sale (the owner does not have a copy of the deed nor is a copy filed at the HM Land Registry). The title provides that the ‘grantor covenants with the Authority to the intent and so as to bind the said strip of land and each and every part thereof in to whosoever hands' the same may come in to and in order to benefit and protect the authorities ‘undertaking or any part thereof…[including]…the said works and the easement granted’. Is this binding on a purchaser and how is any breach remedied?

A restrictive covenant is, in effect, a promise that the landowner will not do something in respect of their land. There are numerous types of...

Produced in partnership with Chris Bryden of 4 King’s Bench Walk 22nd Jan

Q&As

Is there any case law or commentary which considers the scope and meaning of 'for domestic and light agricultural purposes' in the context of the use of a right of way?

In the case of an express grant of a right of way the extent of the right granted depends on the express terms of the grant. The words used in a grant...

Produced in partnership with Helen Galley of XXIV Old Buildings 22nd Jan

Q&As

Where a seller retains no land, what options are there to protect a restrictive covenant against the buyer’s successors in title and could the seller use the requirement for successive deeds of covenant from successors as one might with positive covenants?

It should be noted that different considerations apply if a long leasehold interest is being sold. The issue in this Q&A is that if on the sale to the...

22nd Jan

Q&As

Advice is required for a client who wishes to enforce a restrictive covenant in respect of his neighbour’s land. The covenant provides that owners of the neighbour’s land cannot construct any fence nor allow any hedge or other plants to grow above a height of 2m. The neighbour has planted trees which are over 2m in height and argues that this is not in breach of the covenant because they are trees (and not plants or hedges) and it is not a restrictive covenant but a positive one.

Is a tree a plant or a hedge?Certainly the common botanical definition of ‘tree’ would suggest that a tree is a type of plant, but we have been unable...

22nd Jan

Q&As

A deed of grant of easement imposes land registry restrictions on both the servient and dominant tenement titles to ensure that a deed of covenant is entered into by future successors in title. The grantor and the grantee have entered into positive and restrictive covenants. Should the deed of covenant enforce just the positive covenants, or the restrictive covenants as well (even though they run with the land in any case)?

Easements—generallyAn easement is an incorporeal right enjoyed by the owner of a legal estate (dominant tenement) over land in the ownership of...

22nd Jan

Q&As

What is the process for transferring part of a large property where a property was converted into five separate and independent houses (self-contained). The transferor lives in one of the houses with his wife and his son lives in another. The five houses are under one title number. The transferor owns all five houses (no mortgage). What is the process to transfer one of the houses (the one he lives in) as a gift to his son?

This Q&A states that a large property has been transferred into five separate houses each of which is self-contained. A house is vertically divided...

Produced in partnership with Helen Galley of XXIV Old Buildings 22nd Jan

Q&As

A four-bedroom property is subject to a restrictive covenant requiring it to be used as a single private dwelling. Would conversion of the property into a seven bed house multiple occupation (HMO) be a breach of the restrictive covenant?

This Q&A focuses on the definition of ‘single private dwelling’ and its interpretation. We have not been able to find any authority which directly...

22nd Jan

Q&As

A title register makes reference to 'stipulations' which are provided in the schedule of restrictive covenants, but there is a note on the title that 'No copy of the covenant to observe the said stipulations was supplied on first registration' (which took place in 1993) and a land charges search does not reveal that any of the stipulations were registered. Are these stipulations valid and enforceable?

There are two aspects to this question: (a) are the stipulations binding on a successor in title of the original covenantor, and (b) are the...

22nd Jan

Q&As

A covenant was imposed over freehold land in 1937, preventing alterations without the approval of the vendors. The vendors are likely to be dead. Alterations were made without consent twenty years ago. Is the covenant enforceable?

When A and B enter into a covenant controlling the use of freehold land owned by (or to be transferred to) B for the benefit of land retained or held...

22nd Jan

Q&As

Is my land subject to the burden of a restrictive covenant created pre-1926 still binding if HM Land Registry have only put a protective entry in the Charges register?

At common law the burden of a covenant cannot run (ie so as to bind successive owners or occupiers) with freehold land in any circumstances. However,...

22nd Jan

Q&As

Can a restrictive covenant not to do something be interpreted as not to permit or allow something to be done?

A restrictive covenant is a contractual obligation which prevents a landowner from doing something on or to their land. Such covenants are capable of...

Produced in partnership with Chris Bryden of 4 King’s Bench Walk 22nd Jan

Q&As

The seller sold registered land in 2005 subject to easements, exceptions and reservations as well as restrictive covenants in respect of and for the benefit of the seller's adjoining registered land. There is a note of the rights and covenants in the Property and Charges Registers. In 2016, the seller bought back this land from the buyer and has not sold off any of the adjoining land, but the entries remain on the register. What evidence is required to remove the entries?

Unity of seisin applies to both freehold easements and restrictive covenants: a person cannot have rights or obligations against themselves as owner...

22nd Jan

Q&As