What You Need to Know About Property Restrictive Covenants
Restrictive covenants are found in most title deeds for UK properties. However, most owners are unaware of the restrictive covenants that affect their property (or even what they are) and are consequently at risk of breaching them. This can cause problems when you sell the property in the future and expose you to legal action from those with the benefit of the covenants. Here we explain what covenants are and some common examples and other crucial facts you should know.
What are Restrictive Covenants?
Restrictive covenants are entered into by the original property owners and placed on the title to limit or restrict how the land is used. These covenants can apply to both residential and commercial properties. The effect of the covenants is that on a sale of the property (or a subsequent sale), the person buying the property becomes bound by them.
Restrictive covenants are typically set out in written form (often as a schedule to the title deed) or through a deed of covenant or deed of trust. The majority of covenants will be written as part of the title deeds.
What Are Some Examples of Restrictive Covenants
Historically, restrictive covenants were added to title deeds to preserve the values of adjoining properties. They can also be added to safeguard the area's character and prevent activities that are likely harmful to the local community. On the other hand, they can also be used to protect the privacy of the original owners. Here are some specific examples of restrictive covenants:
1. Prohibiting the Property's Subdivision - means no other property can be constructed from the original property.
2. Prohibiting the Use of the Property for Business Purposes - This refers to using the property as an office, shop, or for subletting purposes.
3. A Requirement to Maintain the Property's Condition For Future Selling – This will state that the property should be kept in a condition that would allow the property to fetch the best price possible. This would typically mean that the property should be kept in repair.
4. Restriction on Permissible Pets - Your restrictive covenants may also restrict the size of your pets. For example, your HOA may state that you are only permitted to possess a small or medium-sized dog. Your HOA may also impose breed limitations on the dogs you may own. Many covenants prohibit dog breeds that some people feel are more violent, such as pit bulls and German Shepherds.
5. Home Color Restrictions - HOAs are pretty fussy about paint colour, which is present in virtually every HOA restrictive covenant. Most paint restrictions establish a list of permissible house colours while excluding all others. If you're looking at a property with a paint colour covenant, assume your design options will be limited to neutral tones.
How Will I Know if a Restrictive Covenant Affects My Property?
One of the main issues people face is that they are not even aware of the covenants that affect their property. In some cases, the covenants are outlined in the title deeds. In other cases, the owner (and subsequent buyers) will only be made aware of the covenants when selling the property. If a buyer refuses to purchase the property due to the restrictions, you may have to forfeit the sale.
If you hire a conveyancer or property solicitor, they will be able to inform you of any restrictive covenants found in the property's title documents and title register. This will allow you to make an informed decision if you decide to proceed with the sale.
Is a Restrictive Covenant Always Enforceable?
In general, enforcing a restrictive covenant violation after 20 years can be difficult. The Limitation Act of 1980 further says that land claims must be filed within 12 years. However, the timer starts ticking the moment the breach occurs, not from the date of the deed.
There are technical reasons why the covenants might not be enforced in some cases, such as if the land is unregistered and the original developer did not file the appropriate safeguards.
Even if a property is registered, if there is a reference in the Charges Register to the property being subject to restrictive covenants contained in an earlier transaction, it is worthwhile to do a Land Charges search to see if the covenants became binding at initial registration.
What If I Breached a Restrictive Covenant While Selling a Property?
If you violate a restrictive covenant, then you could be subject to legal action by the person with the benefit of the covenants, typically the land's original developer. In this case, the developer may take steps to "wind up" the covenants and reinstate the property's original state. This means that the property may have to be returned to its original use and the materials that were used to create the new structure be demolished.
Restrictive covenant concerns are often highly technical or intricate, so it is best to get legal counsel as soon as possible.
Your conveyancer will ensure that the required covenants are listed on the land charges register and will examine the language of a covenant to verify that it is correctly put up and therefore enforceable.
Once the possibility of enforceability has been demonstrated, a conveyancer will often seek avenues where insurance may be purchased to cover the responsibility of any additional breach of contract.
Restrictive covenant indemnity insurance can be obtained only after a covenant has been violated for at least 12 months without complaint. Once secured, the coverage is in perpetuity, which can typically be passed on to future property owners. The cost of these policies will be determined by the number of covenants violated and the assessed amount of enforcement risk. Fees will thus range from roughly £40-50 to hundreds of pounds.
What if My Solicitor Failed to Point Out Restrictive Covenants?
Your solicitor is responsible for informing you of any covenants. If they fail to do so, you have the right to file a complaint with the Legal Ombudsman, and the attorney may be obliged to pay compensation. However, the Ombudsman can only pay up to £50,000 depending on the covenant breach extent, and you might be out of pocket considerably more than this. In certain circumstances, it is wise to seek the advice of a private litigator.
Restrictive covenants are limitations on how you can use your property. They are typically placed on the property title by the previous owners to prevent new owners from damaging their property or making possibly harmful alterations. Therefore, it's essential to partner with a reliable conveyancer or solicitor who can inform or advise you of any potential restrictive covenants and prevent your risk of legal or monetary penalties.
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