I've Breached My Restrictive Covenant - What Now?
Being told you have breached a restrictive covenant on a property can be deeply frustrating, especially if you were not even aware of the restriction. Many properties have restrictive covenants which date back hundreds of years, and no longer make sense in a modern-day context.
Historical restrictions such as preventing a homeowner from hanging washing outside, acting in a "lewd and lascivious manner", or even keeping pigeons, are still commonplace. The problem is that unless there is a request to have them removed from title documents if no longer required, these restrictions remain and will be passed to every successive owner; in other words, restrictive covenants 'run with the land'.
What is a restrictive covenant?
Restrictive covenants are controls imposed on many homeowners in relation to their land and/or dwellings. Their purposes vary, but many covenants are put in place to maintain consistency of standards. Restrictive covenants may impose limitations on making changes to how a property looks, carrying out specific actions (e.g. parking a caravan in front of the property), adding new structures to the land, and whether owners can operate a business from home.
All home buyers must ask their conveyancer to confirm if there are any restrictive covenants in place, what they mean in practice, whether an attempt can be made to lift them, and whether they are enforceable. If a breach of restrictive covenant occurs, this could have some consequences.
Are restrictive covenants enforceable?
In general, restrictive covenants are automatically enforceable between the original parties (e.g. the original landowner and a developer). For subsequent successors in title (i.e. all owners after the original owner), matters are not quite so clear cut. Technically, under common law, the benefit of a restrictive covenant can pass to subsequent owners (successors in title), but the burden on the owner does not. Caselaw (specifically the of Tulk v Moxhay 1848) has, however, changed this, and there is now a requirement for successors in title to be bound by restrictive covenants. That said, do not assume all restrictive covenants are enforceable. You must speak to a property Solicitor who can advise you. From the perspective of a burdened owner, enforceability depends on a range of factors including whether the covenant:
- is negative – positive covenants don't typically run with the land
- correctly registered
- was taken to protect land that was retained by the original covenantee
- if there is a local authority involved - a local housing authority can enforce a covenant against a covenantor's successor in title, even if the local authority does not hold an interest in the land benefitting from the covenant
- genuinely benefits land owned by the person seeking to enforce it
- the burden was meant to run with the land
- was correctly drafted/constructed – i.e. it is not ambiguous, future events were anticipated, it is possible to determine which land is subject to the restrictive covenant, and there is certainty that the covenant covers land and buildings.
What should I do if I have breached a restrictive covenant?
If you are subject to action due to a breach of a restrictive covenant, seek immediate legal advice. As we have established, there are many reasons that a restrictive covenant may not be enforceable. Just because the individual bringing action against you believes they have the benefit of a restrictive covenant and you have breached it, does not make it so.
While it may be possible to seek damages for a genuine breach of a restrictive covenant, in most cases the preferred course of action will be to bring the breach to an end by way of an injunction. If you have discovered that you inadvertently breached a restricted covenant over 12 months ago and there has been no enforcement action, you may be able to put in place restrictive covenant insurance to cover the prospect of such an event in the future.
Is there a breach of restrictive covenant time limit?
In respect of breach of a restrictive covenant time limit to bring an enforcement action, there is no specific period of limitation under the Limitation Act 1980 (LA 1980) for a declaration under section 84(2) Law of Property Act 1925 (LPA 1925). Even so, the Courts will often refuse to grant an injunction if the beneficiary of the covenant has delayed in bringing an enforcement action. Hence, the longer the delay, the less likely an injunction is to be granted.
Breach of covenants: What to do next
The potential to be on the receiving end of enforcement action for a breach of a restrictive covenant highlights the importance of undertaking the necessary due diligence during the conveyancing process. And if at any point during your property ownership you need to clarify a restrictive covenant, speak to a property dispute solicitor who will be able to advise you. It is better to be sure of your rights and restrictions before acting; doing so may avoid a costly headache you may well regret.
If you're facing a breach of a restrictive covenant, our property solicitors and commercial property solicitors can help you. Guillaumes LLP is the most professional solicitors Weybridge has to offer. To discuss your circumstances further please get in touch with us today.