Chair in the garden. Garden chairs and mini-bars. Backyard with a counter bar and long seating in a shady tree garden. Thailand style.

Restrictive covenants, Positive Covenants and How to Tell the Difference

Restrictive covenants – what were they thinking?

If you are doing slightly damp January, like some of us here, you might have started staring wistfully at the gin aisle in Waitrose and wondering what possessed you to get involved in all this rule following?

It’s not just the booze though.   For the sake of society there are all sorts of exciting rules that we work with.   One of the big ones for land lawyers is restrictive covenants.  An Englishman’s home might be his castle, but that doesn’t mean he can do with he likes with the crenellations.

What is a covenant when it’s at home?

It’s a promise that you will do something (a positive covenant) or that you won’t do something (a restrictive covenant).   

Generally:

Restrictive covenants belong to the property and are enforceable against successors in title.

Positive covenants are personal to the people who agree them.

It’s a legal and binding obligation written into the property deeds by a seller. The use of the Property is regulated by the covenant.

For our purposes there are two types, positive (to do something) and restrictive (not to do something).

Whilst they generally govern the practical “hows and whys” that you use the property for, they can be quite wide ranging. Despite the examples I have given in this blog, they are not just archaic, they are in the transfer of every new build property that I have ever bought.

Examples:

Restrictive Covenant 

“No building other than dwellinghouses and suitable outbuildings and fence walls to be erected and no trade. No saleshop or workshop to be erected thereon.”

This begs the question of what a ‘saleshop’ is, but I have assumed that “if you are going to the saleshop Bernard, would you bring me two ounces of strawberry bonbons and a packet of garibaldis?” would not be far off the mark.

The covenant means that the land can only be used for houses.   The covenant probably wouldn’t stop you doing a bit of painting in your shed, but it would stop you taking paying customers’ cars in for a respray.

Positive Covenant 

To pay a proportionate part in respect of the repair and maintenance of the road to the rear of the Property and to erect within two years from the 24th December 1875 to the satisfaction of the parties thereto and thenceforward to maintain a suitable fence.

You can see quite easily why building a fence within two years from 24th December 1875 might be a bit tricky now, so this clearly shows why a positive covenant might just be personal to the people who agreed them.    

The positive covenant to maintain a suitable fence is a bit more complex. Even with a good Mediterranean diet, maintaining a fence from 1875 to now is going to be an issue, but it does seem to be more about the land than about the people involved and as such might be considered to be a restrictive covenant even though the words are “positive” ones.    

The Four Part Test in Tulk v Moxhay

This is chronic drafting from the 1875 solicitor. Whilst the ghost of Christmas Past is unlikely to come to our rescue, the 1848 case of https://en.wikipedia.org/wiki/Tulk_v_Moxhay might be more useful.  This allows lawyers to interpret covenants by using a four-part test.   Pay attention, because I might test you on this later.

  • The covenant must be negative 
  • At the date of the covenant, it must benefit some other land, which we call the “dominant” land
  • The covenant must touch and concern the dominant land.
  • The covenant must be made with the intention to burden the “servient” land. (Land is affected by the covenant is called “serviant”)

Its probably best if you let your eyes glaze over at this point.  

It would be much more sensible to bring your deeds to solicitor, fix them with a withering stare and say “look at my covenant, what do you have to say about that?” rather than try to quote Tulk v Moxhay at Geraldine from next door, whilst she gives you a bit of localized difficulty on the subject of your chicken run.

Protective Entry 

Where the Land Registry has seen that there is a deed with a restrictive covenant but nobody has been able to let them have a copy of it, you will see an entry on your title register that looks something like this:

A conveyance contains restrictive covenants but neither the original deed nor a certified copy or examined abstract thereof was produced on first registration.

Which is all very well, but not exactly helpful.   We treat these entries with caution.  Generally, if the property has stood in its current condition for at least 20 years, we don’t worry about it.   This is because of something called “The Rule in Hepworth v Pickles”. This basically says that an uninterrupted 20-year breach means that we can presume a waiver or release.   If it hasn’t, we will ask for indemnity insurance and explain the risks to you.

So, do positive covenants not matter?

It depends on something called the chain of indemnity.   Yes, I know that’s a solicitor’s answer, but there you have it.   I would have to look at your deeds to know but “it depends” will have to do for now.

Who will know if I erect a Saleshop in my Garden?

The chances are that nobody will know that you have built it in breach of a restrictive covenant.   Then again, you might have one of those neighbours who reads things and who might benefit from the restrictive covenant. They might not want to live next door to your Garibaldi and Strawberry BonBon empire building exercise.    As a result, you might be on the receiving end of a stiff note from his solicitor telling you that if you don’t stop breaching the covenant, he and his client will see you in Court forthwith.

Joking aside both enforcing and defending restrictive covenants is an expensive endeavor but that doesn’t mean it can’t happen.   And its not just saleshops, it can be garages, extensions, conversions, all sorts of things, it can even be “not to make a nuisance with yourself with the washing machine” (yes, I really did see that one once).   Clearly, some things are easier to rectify than others and, even if you are really mucky, you don’t have to do everything on a 90’ boil with a full spin cycle.   

Oh Crikey – I have breached my covenant

If you have had no notice of the breach (i.e. The neighbour hasn’t complained or similar) and the breach is at least 12 months old then you can get fairly low-cost indemnity insurance https://landandlaw.co.uk/indemnity-insurance/ which should protect you against an existing breach.

Never Mind that, I fully Intend to breach my restrictive covenant 

Well, you are a grown up and far be it from me to tell you what to do, but you might be able to get indemnity insurance for an anticipatory breach, although it will be more expensive and probably less easy to find.

This is ridiculous, everyone on my road has broken the covenant!

If you just ignore it, then the chances are that no harm will come to you.   It will give you a pain in the bottom, (mostly in the pocket region), when you come to sell though.

Enforcement proceedings will mean a big legal bill, demolition costs, or similar.

Can I get rid of a covenant that affects my title?

If it’s a big enough breach you could approach the Court (Upper Tribunal (Lands Chamber) yourself or with your solicitor to make an application to remove the covenant.    

It’s a murky area so you probably do want professional support to deal with this.   It can be complex. A specialist barrister might also be needed.    

There is no guarantee of success, but there is a cast iron promise of a big bill. You need to make sure that the covenant you want releasing is worth it.    Your professional advisors should give you a steer on this. As a rule of thumb this is not a place where we only want to have principles and no financial reason for doing it. Otherwise its just the lawyers who win and we all know what they are like.

https://www.gov.uk/government/publications/upper-tribunal-lands-chamber-restrictive-covenants-t608-and-t617

You must have seen all sorts?

Lawyers are absolute wretches; we forget ourselves and talk in jargon;  we have a tendency to read things literally and sometimes we forget to translate old documents into modern English.   This can make us very exciting to know, as my friends and husband will attest.   During one such “read the words out” exercise, many years ago, I said to my clients, a young couple in their early twenties:

“…no erections in the rear garden without the consent of the builder…”

“Oh no”, said the young man, blushing to his roots, “I would never do anything like that”

“It means sheds and greenhouses” I said, in my most professional tones.

I think it says a lot about me as a person that I didn’t start laughing until they left.   The fact that I have been laughing about it for the last 25 years probably says even more.

Do I have covenants affecting my property?

Maybe.   Can you keep pigeons, turn your garage into an alehouse, or hang your washing in your front garden? I can certainly have a look for you.   You can get in touch on anna@landandlaw.co.uk

Share this post

Share on facebook
Share on twitter
Share on linkedin
Share on pinterest
Share on print
Share on email