Common examples of restrictive covenants include placing restrictions on a landowner’s ability to develop the land or restricting what it can be used for.
In order to be legally binding, a restrictive covenant must:
A legally binding restrictive covenant will not fall away when the land is sold. Instead, the benefit and burden will run with the land and future successors in title to that land must comply with it. A party’s failure to comply may result in damages or an injunction being awarded against them.
Where a party has proposals for land that would be in breach of a restrictive covenant, this can be dealt with in the following ways:
A restrictive covenant may be modified or discharged under section 84 provided that the Upper Tribunal is satisfied that:
In addition, money must be adequate compensation to any party that suffers loss or disadvantage from the discharge or modification of the restriction.
In Alexander Devine Children’s Cancer Trust v Housing Solutions Ltd, a developer built multiple housing units on land that was incumbered by a restrictive covenant prohibiting use of it for anything other than a car park. One of the beneficiaries of the covenant objected to the works and requested an undertaking from the developer that the works would be stopped.
The developer continued with the works and later made an application to the Upper Land Tribunal seeking modification of the restrictive covenants to allow the housing units to be occupied. The application was successful, however one of the beneficiaries of the restrictive covenant appealed the decision.
The Supreme Court exercised its power to set aside the decision of the Upper Land Tribunal by refusing the developer’s application. The Supreme Court held that it was wrong to allow the modification of a restrictive covenant where the covenant was deliberately breached with a view to making a profit.
Lord Burrows further commented that it was open to the beneficiary of the covenant to make an application for a prohibitory injunction to prevent the housing units from being occupied, or for a mandatory restorative injunction ordering the removal of the housing units.
The decision in Alexander Devine Children’s Cancer Trust v Housing Solutions Ltd highlights the risks associated with deliberately acting in breach of a restrictive covenant.
For more information on this article please contact Ria Hattam in Ashfords' Real Estate team.