What is a breach of covenant?
A breach of covenant means that one or more parties have not acted in accordance with the covenant that is currently in place. This could be in relation to any number of things, such as access rights, building rights or even preventing a business being run from the property.
The breach of covenant consequences could include having to remove any work done and returning the property or land to its previous condition. There could also be a damages award to pay in any potential legal action. It’s important if involved in a potential breach of covenant to take expert legal advice.
Remedies for a breach of restrictive covenant include a permanent injunction so that the breach cannot be continued or carried out again. If it goes to court, sometimes the court can choose to award damages rather than an injunction.
Covenant advice
You may consider that you have the benefit of a covenant and want to stop a neighbour from doing something on their land such as building a large extension. On the other hand, you may want advice on whether your neighbour can stop you building an extension. The question of whether the benefit or the burden of a covenant has passed to owners not original party to the Deed is a complex legal issue and you will require specialist advice.
Covenants can have a variety of consequences. They can affect house prices by burdening property with added costs, infringe privacy by permitting others to enter your land and carry personal costs for homeowners. Similarly, a breach of covenant by your neighbour might cause you loss or inconvenience. At Stephensons, we understand the significance of these issues. The mechanics of covenants can be extremely complex, but our experienced property law team can cut through the legal jargon and provide you with a solution without the red tape.
Frequently asked questions about breaches of covenant and restrictive covenants
We have answered some of the most common questions that we are asked about breach of covenant enforcement and related subjects. If you can’t find the information you are looking for below, please don’t hesitate to contact our specialist team.
What is breach of covenant in relation to property and land?
A breach of covenant in relation to property and land means that one party has broken the rules on what can and cannot be done on their land, which is to the detriment of the other party. Restrictive covenants often include rules on changes to buildings or what the land can be used for.
Breaching a covenant can have serious consequences for the party who has broken the rules and legal action may be taken against them.
What happens if you breach a covenant?
Breaching a restrictive covenant leaves you open to potential legal action from the other party, if they wish to enforce the covenant. If you are taken to court and the other party is successful, you might have to undo any work carried out and may face a fine or have to pay damages, as well as legal fees.
Who enforces breach of covenant?
The owner of the land that benefits from the restrictive covenant is the one who can enforce a breach in restrictive covenant, as they potentially stand to lose out as a result of the breach. If they choose to, they are the party that can take legal action against you. Sometimes the benefit of a covenant rests with person or company and not land, such as the original developer.
Are covenants legally enforceable?
Restrictive covenants are usually legally enforceable and binding if they have been set up properly, but can cease to be enforceable after a period of time in some circumstances. It’s important to take expert legal advice if you have a restrictive covenant on your property that you wish to challenge or are unsure if you have breached.
How do you know if a covenant is enforceable?
There are certain criteria that must be met in order for a restrictive covenant to be enforceable. An expert solicitor in this area can help you to find out if these apply in the case of your property. They include:
- That the covenant is for the benefit of the other party’s land
- That the covenant was intended to ‘run with the land’ – which means it was meant to remain enforceable for future owners of the property as well as the original
- That the party trying to enforce the covenant owns the land that benefits from it
- That the buyer of the land with the restrictive covenant on it was notified or should have been aware about it when they made their purchase
Can a neighbour enforce a restrictive covenant?
A neighbour can only enforce a restrictive covenant on a property or land if they are the landowner that benefits from the covenant. A neighbour that has no direct connection to the restrictive covenant cannot enforce it in any way.
Can I ignore a restrictive covenant?
Ignoring a restrictive covenant means that you could potentially be faced with a legal claim against you and injunctions to stop you from making the changes you wish to. You may have to pay damages to the other party to compensate for the breach too.
Can you get covenants removed?
In some cases, restrictive covenants may be able to be removed, especially if things have changed significantly since the covenant was put in place, or if the benefiting landowner is prepared to remove it. This can be a complex area of law, so expert legal advice is needed if you want to look into covenant removal.
How long does a covenant last on a property?
Covenants have no expiration date; they remain in effect indefinitely. Thus, even if a covenant originates from the 19th century or earlier, it retains its legal validity. Nevertheless, exceptionally old covenants may be deemed unenforceable in certain situations.
The length of time that a covenant lasts on a property will depend on the circumstances in which it was originally placed and for what purpose. If the covenant is said to ‘run with the land’ then there is usually no time limit, regardless of how many times the property has been sold on.
However, if it can be proven that the intention was never for the covenant to continue indefinitely, or there are reasons why it should no longer apply, it may be possible to get the covenant removed. Expert legal advice is needed in order to attempt this.
How to get around restrictive covenants
When you can identify the covenant beneficiary, you have the option to negotiate either the release or modification of the covenant, which can be registered with the Land Registry. Specific criteria must be met for a restrictive covenant to remain valid and serve its intended purpose.
You can seek legal advice to explore options such as applying to a tribunal for modification or discharge, negotiating with affected parties, or demonstrating that the covenant is unenforceable.
How much does it cost to enforce a restrictive covenant?
The cost of enforcing a restrictive covenant can vary significantly depending on factors such as legal fees, negotiations, and potential court proceedings. It's advisable to consult with a solicitor to get an accurate estimate of the expenses involved in your specific case.
