Breaching property restrictive covenants

A restrictive covenant is an obligation that can affect freehold land because conditions have been placed on its use in the past.

For example, a family may own a large field, which they sell to a house builder. However, because they intend to live next door on their farmland, they may insist that a covenant is included that prohibits the field land from being used for anything other than residential purposes.

Alternatively, a covenant may be included that states no houses built on the new site can ever be used for a business. In modern times, and given the advent of homeworking post-COVID, this restriction can cause an issue for many homeowners.

Another example of a restrictive covenant is when a building plot is sold, and the seller imposes a covenant that states only one house can be built on the plot. Many years later, a developer wants to do some infill building and build additional properties on the site. If the person with the benefit of the covenant is still around, they may be able to stop any further building and enforce the covenant.

This area of law is complex and fraught with difficulty and if you are the owner of land that has a covenant imposed and you are concerned that you might be breaching the covenant, or if you own a piece of land that has the benefit of a covenant that you might want to enforce in relation to neighbouring land, then you should always seek legal advice at the earliest opportunity from a lawyer who specialises in property disputes.

Are all restrictive covenants the same?

The simple answer is no. In this context, it is important to identify whether the covenant is negative or positive.

A positive covenant imposes an obligation to carry out some positive action concerning that land or requires the expenditure of money. It obliges the party with the burden of the covenant to actively do something rather than not do something.

In contrast, a negative and restrictive covenant restricts the use and enjoyment of the land.

This distinction is really important because when land is sold, depending on whether or not it is a positive or negative covenant, will determine whether the burden (the obligation to abide by the covenant) passes with the sale and whether or not it binds the new owners.

In brief terms, if it is a positive covenant, it does not automatically pass onto the new landowners and legally bind them. In contrast, if it is a restrictive covenant, it will bind a new landowner. Extreme care should be taken when the property is being passed on to a new owner as to whether positive covenants will be enforceable in the future.

How do I know if I'm affected by a restrictive covenant?

It should be obvious from the Land Registry title whether or not restrictive covenants affect a particular parcel of land. However, even if there is a restrictive covenant noted on the title register, the next question to consider is whether or not the covenants are enforceable and between which parties?

Covenants are enforceable between the original parties, but for a restrictive covenant to be enforceable between the parties' subsequent owners, various points need to be checked before you can be sure that it is still an enforceable covenant.

Those points include whether the restrictive covenant is correctly protected by registration against the Land Registry title for the burdened land and, if registration is irrelevant, whether the owner of the burdened land had notice of the covenant when they bought the land.

There are also complex rules in place regarding whether land is still subject to the burden of a restrictive covenant, depending on whether the covenant was imposed before or after January 1926.

How can I enforce a restrictive covenant?

The usual remedy for a breach of a restrictive covenant is an award of financial damages. However, if you benefit from a restrictive covenant, you are likely to want any potential breach to be stopped by a Court order or injunction and the law will, in some cases, step in to offer that remedy.

It is important to take prompt action if you're seeking an injunction because the Court can refuse to grant that order if there has been a delay in seeking its enforcement.

Even if the Court is satisfied that there are circumstances where an injunction could be granted, they can still award damages instead. This is usually in cases where it is considered that the injury to the claimant's rights is small, the value of the injury can be calculated in monetary terms, a financial payment can adequately compensate the injury, and it would be oppressive to grant an injunction.

How are damages calculated in restrictive covenant claims?

Damages awarded are based on the sum that would have been reached in negotiations between the parties if each reasonably used their respective bargaining positions without holding out for unreasonable amounts. This is also known as the hypothetical negotiation amount.

How can I get a covenant released?

There are various ways of dealing with a restrictive covenant. It might be possible to negotiate the release or variation of the covenant, but this should only be attempted where:

• It can be established that the covenant does burden a parcel of land
• The full extent of the land that benefits from the covenant can be ascertained
• All of the owners of the benefitting land can be identified and located
• The restrictive covenant is still believed to be enforceable
• The proposed development or activity will breach the restrictive covenant.

Obtaining indemnity insurance is a possibility in some circumstances, but if you are considering taking any insurance, you should not make any approach to the potential beneficiaries of the covenant first.

The beneficiary of the covenant might ask for a payment to release or vary it, and the amount to be paid is a matter for negotiation. If terms for a release or variation are agreed upon, they should be properly documented in a deed of release or variation.

It might also be possible to apply to the Upper Tribunal of the Lands Chamber to ask them to modify or discharge the covenant. There are limited grounds upon which the Upper Tribunal can make such an order, and it should be noted that the application can only apply to restrictive covenants, not positive covenants. The tribunal's grounds for potentially modifying or discharging a covenant include where:

• "the covenant is obsolete"
• "the covenant impedes a reasonable use of the land"
• "by agreement"
• "no injury will be caused"

However, the Upper Tribunal's power to discharge or modify covenants is discretionary.

Modification of a restrictive covenants case law

Given the limitations on land available in England, it is common for cases to be taken to the Upper Tribunal in relation to releasing or modifying covenants. A decision was made in 2025 that provides a helpful reminder of the issues the Tribunal has to consider, where there is a tension between the grant of planning permission and the existence of restrictive covenants, which prevent the desired development of a property.

Hassan and Osmond -v- Heath came before the Upper Tribunal in 2025. It concerned two properties namely, number 24 (belonging to the Applicants) and number 24a (belonging to the Respondent, Mr Heath). Both properties were two-storey houses with number 24 being a Victorian property and number 24a being a converted stable building, which at one time formed part of the same plot as number 24.

In the mid-1980s the plot was divided in two and a covenant was imposed, the burden of which was attached to number 24, that provided that "the external plan or elevation of the dwellinghouse shall not be altered or permitted or suffered to be altered nor shall any building or erection other than the said dwellinghouse be erected on the land ("the Covenant").

In 2017, the Applicants bought number 24. One of their sons was autistic, with high support needs. Number 24 only had two bedrooms and it was therefore always the Applicants' intention to redevelop the property to provide more space. They were aware of the Covenant when they bought the property, but were poorly advised that it would be no obstacle to their intended plans for the property.

In 2021, Mr Heath bought number 24a. He was a retired opera singer with interests in art and design and spent three quarters of the year in his conservatory, which he used as an office and a place to relax, as it faced out onto his garden.

In 2023, the Applicants sought planning permission for the redevelopment at 24, principally to extend the ground floor and extend and convert the loft, creating another bedroom. Although Mr Heath objected to the planning application, planning permission was given in January 2024. It was given to allow permission for the roof extension and single a storey ground floor side extension.

As they were obliged to do once the planning permission had been granted and the Applicants wanted to start work, they served a party wall notice on Mr Heath. In response, he served a formal Letter Before Action, threatened an injunction to restrain the Applicants from carrying out their works, relying on the Covenant. However, the Applicants carried on with their works and those works were already half completed by the time Mr Heath obtained an injunction in August 2024, to stop the work. At that time, the roof works had not started.

Everybody agreed, as part of those proceedings, that the majority of the works, namely extending the ground floor and raising the roof height, were all caught by the Covenant. It was therefore necessary for the Tribunal to consider the true construction of the Covenant and whether it encompassed all of the works and specifically, whether the creation of door and window openings were alterations to the "elevation" of number 24 and, whether in any event, the Covenant ought to be modified or discharged under section 84 (1) of the Law of Property Act 1925. The Tribunal reached a decision on the first issue very quickly. They held that alterations to the windows and door openings were alterations to elevations and were therefore prohibited by the Covenant.

On the modification issue, the Applicants had sought modification of the Covenant under ground (aa) of section 84 (1) LPA 1925, the "reasonable user" ground. They argued that they ought to be allowed to carry out their works because the Covenant was impeding a reasonable use of the land for public and private purposes. The Tribunal had the power to modify the Covenant, if it was satisfied that the Covenant secured no practical benefit of substantial value or advantage to Mr Heath or, if it was contrary to the public interest not to allow the modification.

In looking at this issue, the Tribunal followed the two-stage test that has been established in the Alexander Devine Children's Cancer Trust -v- Housing Solutions case in 2020. At the first stage, the Tribunal had to be satisfied that the prescribed ground was made out. If that threshold was met, it would then look at the second discretionary stage to decide whether and to what extent it ought to modify the restriction.

In these cases, the Tribunal has to balance the Applicants' desire to develop their property with the desire of the neighbour to enjoy their property and the value to the neighbour of preserving the status quo. Mr Heath gave evidence to the Tribunal that, notwithstanding the grant of planning permission, the roof alterations were totally out of keeping with the character of the area and with the flow of the buildings, when considered together.

The parties agreed that the restriction impeded a reasonable user of the land and that it secured a practical benefit to Mr Heath. However, the Tribunal was not satisfied that the ability to prevent the works was of substantial value (assessed by reference to the hypothetical reduction in value of Mr Heath's property). The Tribunal therefore had to determine whether or not the Covenant actually conferred a substantial advantage upon Mr Heath.

It looked at the two aspects of the work separately. In relation to the ground floor works, they noted that there would only be a small increase in the height of the ground floor. Any overlooking or light pollution was only likely to be minimal. Therefore, the ability to prevent the Applicants from completing the ground floor works was not, in the Tribunal's view, of substantial advantage to Mr Heath and the Applicants succeeded on this aspect.

In relation to the roof works, irrespective of the fact that the Applicants had planning permission and that they had succeeded on their arguments in relation to the ground floor works, the Tribunal reached a different conclusion. Here they found that the structure would have had a significantly overbearing effect on the conservatory and garden of Mr Heath's property. The restriction was of substantial advantage to Mr Heath.

That therefore only left the question of whether the modification could be justified on public interest grounds. The Tribunal found it could not. Notwithstanding the needs of the Applicants' son and the fact that without the roof works number 24 was too small for them, this did not justify what would otherwise be a substantial interference with Mr Heath's property rights.

It is a common misconception that if a party obtains planning permission, that that is the final hurdle before works can commence. However, this is not always the case, especially where there are property restrictive covenants in place that need to be dealt with before development can commence. As a general rule, courts are generally reluctant to interfere with private property rights and the sanctity of contract. If development is therefore intended in any situation where a restrictive covenant is in place, then early legal advice should always be taken before development is started.

An example of a case in which the Tribunal modified the covenant to permit office redevelopment in accordance with planning permission was the 2024 case of Beeches Capital v Alison Hunt.

In this case, an application for the modification of a restrictive covenant to allow for the demolition of old, unused agricultural buildings and the erection of a modern office unit succeeded under ground (aa) of section 84 (1) of the Law of Property Act 1925 which allows a Tribunal to modify a covenant if it is prohibiting a reasonable use of the land.

In a conveyance from November 1959, a restriction had been imposed on the land on the outskirts of Tring, which prohibited the erection of any building or structure on the land unless they were used for agricultural purposes and being of a height of no more than 7 feet to the eaves and 12 feet to the ridge.

The original covenantor died in May 2024, but the personal representatives of her estate maintained the objection to the modification or removal of the covenant. In May 1973, planning consent was issued for the demolition of the existing buildings and the erection of a bungalow, two large hen feeding houses, and two feed hoppers. The ridge height of the sheds was 5 meters and, therefore, in excess of the height allowed in the restrictive covenant.

In 1967, Mr and Mrs Hunt purchased the house known as Drayton Holloway, which had the benefit of the restriction. In 1991, they purchased a 7-acre field and a strip of woodland.

An application was made to the Tribunal for the discharge or modification of the covenant on the grounds that the restriction should now be deemed obsolete and, that it would impede some reasonable use of the land, and that the restriction secured no practical benefit of substantial benefit or advantage any longer. It was agreed that the restriction did not prevent the conversion scheme, but it did prevent the redevelopment scheme, so it was necessary to compare the impact of each individual scheme.

The Tribunal found that the restriction was not obsolete because the character of the buildings on the application land had not changed from that envisaged by the restriction. Although the use was no longer agricultural, the purpose of the covenant was to control the appearance and not necessarily use. The restriction still achieved the purpose for which it was imposed and, therefore, protected the adjoining land.

The parties agreed, however, that the redevelopment scheme was a reasonable use of the application land. It was, therefore, necessary to consider whether the restrictions secured a practical benefit to the objector. The Tribunal determined that a close-boarded security fence largely mitigated the visibility and impact of the current buildings. This fence did limit the type of building that would be visible.

It was considered to be a practical benefit to the objectors, albeit not a substantial one. The applicants had approved soft landscaping drawings, which provided for a total of 13 trees in the space between the buildings and the field boundary. These trees would, over time, heavily screen the visual impact of the new buildings when viewed from the field. It was also noted that the objectors attempted their own planting scheme in mitigation. The Tribunal did not consider a discharge of the covenant to be appropriate, but they were willing to grant a modification for a carefully specified scheme with 17 conditions attached.

The Tribunal was satisfied that it would not preclude or set a precedent for any future applications on the land.

The Tribunal then went on to consider whether the loss of amenity was capable of being compensated in monetary terms and decided that the sum of £15,000 would be adequate compensation for the loss of amenity the objectors would suffer until the tree planting reached maturity.