Restrictive covenants

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Latest Property News

Property weekly highlights—16 September 2021

The following Property news provides comprehensive and up to date legal information on Property weekly highlights—16 September 2021

UK parking nightmare—what is happening with NCP’s restructuring plan?

The following Property Disputes news provides comprehensive and up to date legal information on UK parking nightmare—what is happening with NCP’s restructuring plan?

Whose fraud is it anyway? The effect of forgery and the defence of illegality on equitable property interests (Victus (2) v Munroe; Benjamin v Victus (1))

The following Dispute Resolution news provides comprehensive and up to date legal information on Whose fraud is it anyway? The effect of forgery and the defence of illegality on equitable property interests (Victus (2) v Munroe; Benjamin v Victus (1))

Property weekly highlights—9 September 2021

The following Property news provides comprehensive and up to date legal information on Property weekly highlights—9 September 2021

Featured Property content

Resulting trusts

Resulting trusts represent one of the three types of trust which do not require to be declared or evidenced in writing. The others are constructive...

Easements and perpetuities

Drafting—2009 ActThe Perpetuities and Accumulations Act 2009 effectively disapplies the rule against perpetuities from future easements granted on or...

Title guarantee and covenants for title

On the disposition of a property (whether by way of conveyance, transfer or charge), the party making the disposition will normally provide a title...

What is a certificate of title?

A certificate of title (also known as a certificate on title) is a particular species of report on title.When solicitors are instructed to investigate...

Practice notes

A review of Standard Commercial Property Conditions (Third Edition) and practical tips

A review of Standard Commercial Property Conditions (Third Edition) and practical tipsThe Third EditionThe third edition of the Standard Commercial...

19th May

Practice notes

Occupiers and overriding interests

Overriding interests are interests which are binding on property even though they are not shown on the register. They bind both the registered...

19th May

Practice notes

Headline rents

What is a headline rent?In a falling market, landlords frequently offer tenants financial inducements to take a lease in order to maintain the level...

19th May

Practice notes

Derogation from grant and the covenant for quiet enjoyment

The rule against derogation from grant applies in addition to any obligation of quiet enjoyment. It is not excluded by an express covenant for quiet...

19th May

Q&As

If a transfer deed (TR1) has been signed by both the transferor and transferee, the transferor dies and then the TR1 is dated after death of the transferor (in error), is it still valid?

A deed (such as a TR1) is valid and binding if the essential ingredients of execution as a deed, attestation and delivery as a deed are all present:...

19th May

Practice notes

Starter tenancies

A starter tenancy is an assured shorthold tenancy granted by a registered provider of social housing (RP) and is similar to a local authority...

19th May

Practice notes

Dealing with rights of access in property transactions—Scotland

Ownership, leasing or any other permitted use of land normally requires access to it to obtain the benefit of the land. The public are allowed to use...

Produced in partnership with Stuart King of Blackadders and Melanie Ballantyne of Blackadders 19th May

Scottish Law

Practice notes

Rent suspension or cesser

Generally, the tenant remains liable for the rent even though the premises have become unusable. Consequently, leases normally contain a provision...

19th May

Precedents

Contract for sale—agricultural land—freehold, vacant possession

Date [date]Parties1[name of (first) Seller] [and [name of second Seller] both] [of OR incorporated in England and Wales (with company registration...

19th May

Q&As

What happens to an under lease/sub-lease when the landlord of the under lease lawfully assigns the head lease to the tenant of the under lease so that the tenant of the under lease in effect becomes the tenant of the superior landlord as he has been assigned the head lease? Is the under lease automatically extinguished or does it merge with the head lease?

What is merger?A lease terminates as a result of merger when both the lease and the reversion of that lease become vested in the same person—see Rye v...

19th May

Practice notes

Tenant’s insurance issues—rent suspension

No suspension impliedA suspension of rent is not implied even where the tenant pays the cost of insurance. The tenant remains liable for the rent even...

19th May

Practice notes

Is the agreement a grazing licence or farm business tenancy?

Is the agreement a grazing licence or farm business tenancy?What is a grazing licence?A grazing licence is an agreement under which a landowner allows...

19th May

Practice notes

Who is liable for inherent defects?

Defects in design, faulty installation or the use of inappropriate or inadequate materials when building a property can lead to significant problems...

19th May

Precedents

Simple declaration to exclude Part II Landlord and Tenant Act 1954 (guarantor)

EXPLANATORY NOTE: IN THIS PRECEDENT, INSERT THE NAME OF THE GUARANTOR WHERE PROMPTED TO DO SO. OTHERWISE, TO KEEP THIS DECLARATION IN LINE WITH THE...

19th May

Q&As

Do the implied covenants under a full title guarantee in section 2 of the Law of Property (Miscellaneous Provisions) Act 1994 apply to a grant of a lease? To what extent do they apply to a grant of a lease?

The Law of Property (Miscellaneous Provisions) Act 1994 (LP(MP)A 1994) sets out a number of covenants to be implied on a disposition of property,...

Produced in partnership with Carl Fain of Tanfield Chambers 19th May

Practice notes

Modification and release of restrictive covenants—the non-statutory route

See Practice Note: Modification and discharge of restrictive covenants—the statutory route in relation to the statutory route.Express releaseA...

19th May

Most recent Restrictive covenants content

Practice notes

Declaratory relief of planning decisions

Declaratory relief of planning decisionsA declaratory judgment is a judgment identifying the rights, duties or obligations of one or more parties in a...

18th Aug

Q&As

What remedies are available to a buyer whose solicitors have breached their duty of care (negligence) and acted in breach of retainer in failing (i) to use the correct forms of Land Registry transfer (ii) to include necessary grants and reservations of rights and imposition of restrictive covenants with the result that the buyer (a) cannot register the transfer with the Land Registry and (b) in circumstances where the seller is refusing to enter into new and correct forms of transfer?

What remedies are available to a buyer whose solicitors have breached their duty of care (negligence) and acted in breach of retainer in failing (i)...

18th Aug

Q&As

Is there any potential stamp duty land tax payable as a result of entering into a deed of release/variation of a restrictive covenant affecting a freehold title in return for payment of a financial consideration?

Is there any potential stamp duty land tax payable as a result of entering into a deed of release/variation of a restrictive covenant affecting a...

Produced in partnership with Sean Randall of Blick Rothenberg 16th Aug

Precedents

Deed of release of covenants

Deed of release of covenantsThis Deed is made on [date]Parties1[name of person releasing the covenants] [of [insert address] OR incorporated in...

10th Aug

Precedents

Declaration that there is no building scheme, seller free to modify covenants

Declaration that there is no building scheme, seller free to modify covenants1It is agreed and declared that nothing contained...

10th Aug

Precedents

Deed of covenant (imposing new covenants on land—restrictive or positive)

Deed of covenant (imposing new covenants on land—restrictive or positive)DateParties1[insert name of Covenantor ][of [insert address] OR incorporated...

10th Aug

Q&As

A restrictive covenant was registered correctly on the titles to the benefitting and burdened land. A deed of release released the restrictive covenant and the burden was removed from the burdened title but the benefit was not removed from the title of the benefitting land. Can the restrictive covenant be enforced against the burdened land? Does it make a difference if the benefitting land has been transferred since the date of the deed of release?

A restrictive covenant was registered correctly on the titles to the benefitting and burdened land. A deed of release released the restrictive...

Produced in partnership with Kevin Leigh of No 5 Chambers 10th Aug

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?

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...

10th Aug

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?

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...

Produced in partnership with Helen Galley of XXIV Old Buildings 10th Aug

Q&As

Can (A) impose a restriction on a property stating it isn't to be used as a place of worship or religious institution (falling under D1)?

Can (A) impose a restriction on a property stating it isn't to be used as a place of worship or religious institution (falling under D1)?Having...

10th Aug

Q&As

Where there is a freehold restrictive covenant on a residential property which covers extending the property, is there an implied term in law that the consent cannot be unreasonably withheld and are there any limits on what the person with the benefit of the covenant can charge as fees for providing the consent?

Where there is a freehold restrictive covenant on a residential property which covers extending the property, is there an implied term in law that the...

Produced in partnership with Carl Fain of Tanfield Chambers 10th Aug

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?

The seller sold registered land in 2005 subject to easements, exceptions and reservations as well as restrictive covenants in respect of and for the...

10th Aug

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.

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...

10th Aug

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?

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

10th Aug

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?

Registered land is subject to unascertainable restrictive covenants in favour of a water company imposed at the time of a previous sale (the owner...

Produced in partnership with Chris Bryden of 4 King’s Bench Walk 10th Aug

Q&As

Does a right of pre-emption run with the land and bind all successors-in-title if it is not expressly set out in the transfer and then noted against the title as a restriction or notice?

Does a right of pre-emption run with the land and bind all successors-in-title if it is not expressly set out in the transfer and then noted against...

10th Aug

Q&As

A property is subject to a restriction that it is not to be used other than as a private dwellinghouse by a single family (subject to the number of persons occupying the property not exceeding the number of persons as specified in Schedule 6 to the Housing Act 1957). The Housing Act 1985 (HA 1985) consolidated previous Housing Acts. Would this mean that when calculating the number of persons now, the restriction should be interpreted by reference to HA 1985, s 326?

A property is subject to a restriction that it is not to be used other than as a private dwellinghouse by a single family (subject to the number of...

10th Aug

Q&As