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How Restrictive Covenants Can Affect Homebuyers

How Restrictive Covenants Can Affect Homebuyers

You’ve paid your deposit, sorted out your mortgage and moved in – it’s now your home to do what you want with. Or is it? Buried in the small print of the title deeds or lease could be a list of things you are not allowed to do and it could include anything from building another property on your land to keeping chickens.

These clauses are known as “restrictive covenants”; breaching one can be an expensive mistake, so it pays to know if your property has any and, if necessary, protect yourself from any fallout.

Some rules date back many years. The owners of at least one Edwardian property in Brighton and Hove are prohibited from displaying their washing in “a lewd and lascivious manner,” for example.

Housing developers and property management companies are often keen to enforce covenants on their estates or blocks of flats to maintain an attractive environment while properties are being sold. In 2015 a development in Yorkshire made the headlines because a covenant in buyers’ contracts said that they could not hang washing where it could be seen outside the property. It also said residents could not park caravans or trailers on their driveways. Buyers were told about the rules before they signed contracts and the covenants would always be set out in full in the transfer deed from the developer to the buyer.

In May this year, a homeowner was told to remove CCTV cameras from his house on a new estate in Sevenoaks, Kent, because they breached two restrictive covenants. He had bought the cameras for £100 to monitor his van parked at the back of the house and visitors to his front door, but did not seek permission from the developer. The homeowner received a letter from the management company of the development, asking him to remove the camera at the back of the house because it breached a covenant stating that he was “not to add to or alter any building on the property in any way so as to affect substantially the external appearance without prior written consent”.

He removed the rear camera but three weeks later received a letter from a solicitor, acting on behalf of the management company, asking him to remove all the cameras. In this letter the solicitor quoted yet another clause that prohibited “any act or thing in or upon the property which may be or grow to be a damage, nuisance or annoyance to the management company or to the neighbourhood”. He removed all of the cameras.

Some people however are prepared to take their chances and plead ignorance if caught. For example, some may take the view that even if they are technically banned from keeping “fowl” or “livestock,” they are unlikely to face legal action for having a couple of chickens at the bottom of the garden.

Contributors to web forums have suggested that, realistically, it is your immediate neighbours who would be most likely to report you for breaching such a covenant, so try to keep them on side – by, for example, talking to them about your plans, allaying any concerns they may have about noise/smells/rats, and giving them some eggs from time to time. Also, sometimes the wording of the covenant will be vague – for example, you might be able to argue that your chickens are pets.

Generally speaking, whether the covenant is enforceable will depend on how long ago the breach occurred, if it was intended to benefit a particular individual and whether the breach can be deemed a loss or nuisance. If a resident has been hanging out washing on a Sunday for the past 20 years without complaint, then a covenant prohibiting this is likely to be unenforceable.

Consumer protection regulations do require that estate agents provide buyers with all the information they require to make a transactional decision and this should in theory include informing potential buyers about any restrictive covenants on a property. Your solicitor should also spot and highlight any unusual requirements when reading the contract for you.

If you have a covenant on your property that you believe has become obsolete you can make an application to the Upper Tribunal (Lands Chamber) – formerly the Lands Tribunal – seeking an order to “discharge” or “modify” the restriction. However, this can take several years and can be costly.

If you would like further help or advice about restrictive covenants please contact Sue Alexander on 01325 466461 or email sue.alexander@close-thornton.co.uk .

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