Restrictive Covenants and Planning Permission
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A restrictive covenant is a binding agreement preventing the property owner from certain actions in relation to the property. It can also be used by a leaseholder to ensure that a property remains in good repair as commonly seen in leases pertaining to blocks of flats. Common types of restrictive covenants typically found in a lease include: Directives to not cause nuisance to your neighbour Directives to not remove any internal walls Directives to not install/remove unsightly individual satellite dishes Directives to repaint the internal walls of the property after a specified time has passed In relation to residential property and land, restrictive covenants can be used to impose restrictions. For example, to prevent: Building or construction of any buildings on the property Use of the building for any business or trade Extension or alteration of the property without 3rd party consent Although each restrictive covenant is different with it's own specific terms, they generally apply to each new purchaser that signs a contract to purchase a property and therefore binds any successive land owners unless the terms of the covenant state otherwise, for instance, a period of time for which after that, the restriction will end. By purchasing a property with a Restrictive Covenant, you enter into a legally binding Agreement to comply with its terms. Failure to comply allows action to be taken against you, for example, a stipulated fine or termination of a lease and also court proceedings. It is a matter of due diligence and prudence to involve your conveyancing solicitor to check if any restrictive covenants are associated with your purchase. For land, this can be done by contacting HM Land Registry to request information regarding the property usually contained within a 'Title Document' in the 'Property Register' section, where there may also be references to other documents such as a 'Deed of Contract' or 'Transfer' that will give a complete understanding of the restriction. The restrictions may also be referred to in terms of particular colours denoted on the 'Title Plan' with the same 'Title Number', in which case it would be helpful to obtain a copy of the plan to read alongside the covenant for a better understanding of the restrictions. Any financial restrictions included within the covenant are recorded in the 'Charges Register'. These are typically enforced by mortgage lenders to ensure that the property cannot be sold without their consent, to ensure that the loan is repaid. If the Land Registry cannot locate the title documents, it is possible that the land has not been registered. Compulsory land registration only came into force after 1990, therefore it may be difficult to obtain title documents for all land purchased prior to this date. Information can still be found from the original Deeds, which would often include a specific section entitled 'Restrictive Covenants'. That failing, often not, it should be included within the details of the property. Restrictive covenants are separate from planning control and cannot be taken into account when making planning decisions as they are not enforced by the planning authority, regardless of historic rights, such as right to light. Therefore obtaining planning approval or building regulations approval does not necessarily mean that you have complied with the 'legally binding' covenant. In such an instance where planning approval has been gained, but there is a covenant breach, an application to enforce the covenant will be made to the Lands Tribunal. Similarly, a developer may also apply to the Lands Tribunal to have a restrictive covenant removed. The Lands Tribunal has special power, under section 86 of the Law of Property Act 1925, to remove or relax covenants which appear out of date or unreasonable. Restrictive covenants, do not only affect future purchasers, but may also affect sellers retrospectively, whereby an unknown breached covenant during one's tenure would need to be dealt with prior to selling. Such actions may include: Undoing of alterations such as taking down the extension Obtaining retrospective consent from the party who has the benefit of the covenant, which undoubtedly has significant costs associated and no guarantee of success Obtaining an indemnity insurance policy to cover the buyer and usually their lender in the event that an attempt is made to enforce the covenant It is also worth knowing that if there has been a continuous breach for over 20 years, a claim to rectify the breach will be statute barred and unenforceable. |
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Page last updated: 24/01/2012 * Disclaimer: All article content is the opinion of the author and does not represent the views of RenovationFinance.co.uk. In all instances, you are advised to seek independent advice. |
