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Modifying restrictive covenants

Jan 18, 2019

When it comes to property, all is not always as it seems. Whether you have your eye on a simple piece of land, an office block, or a family home, a whole host of potentially thwarting issues can be lurking in the legal documents.

It’s our job to find these and to make our property-buying clients aware of them before they commit fully to the transaction. One of the major hotspots is a restrictive covenant. This prescribes the way in which land may and may not be used, and how it may be adapted or built on – so these covenants will be of particular concern to property developers, some of whom find that the houses they intend to build would fall foul of the prohibitions.  

However, anyone looking to buy land or property, whether for commercial or residential purposes, should take careful note of any restrictive covenants in the paperwork. Breaching an enforceable covenant (for example, by switching the use of land from agricultural to residential, or building a large extension that impinges on another property) can have serious consequences. In the worst cases, people are forced to undo the structural work they have carried out – something that not only wastes a huge amount of construction expenditure, but also leaves them with a property that does not give them what they wanted.

Some people are prepared to take the risk that either (a) the person who stands to benefit from the restrictive covenant will not recognise or take issue with the breach, or (b) that the covenant will be found by a court to be unenforceable. Those people plough on, with crossed fingers and – if they’re wise -  indemnity insurance. And in some situations, that may be a risk worth taking. However, the safer route (legally, at least) is to look to modify or even remove the covenant so that it doesn’t prevent your proposed works/use of the land or property from going ahead. Of course, one effect of this is that the beneficiary of the covenant is made aware of the issue. But with some careful negotiation it is possible to reach an outcome that works for both parties, and which provides certainty.

By far the most important part of this is understanding your position as early on in the conveyancing process as possible; knowing exactly what the land or property you’re proposing to buy allows and what it prohibits. That way, you will be able to make the best decisions about how to proceed.

Contact our Conveyancing team today to discuss how we can assist you, tel: 01264 353411, email: conveyancing@bsandi.co.uk or fill in our no obligation, online enquiry form and someone will be in touch


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