Above the law

Our lawyer Fiona McNulty looks at the complex area of covenants - who can enforce them, and when?
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Legal issues of covenants cartoon
© Malcolm Willett (www.willett-ink.co.uk)
Question: Our next-door neighbours have recently put up a conservatory, which we believe is prohibited by a covenant that affects our property and, we believe, all the properties on our estate.

Is it possible that the covenant could have been waived?

Answer: Covenants are legally enforceable promises. Who can enforce them, and when, is a complex area. A number of tests must be satisfied before a covenant can be enforced.

First, there must be land capable of benefiting from the covenant and the covenant must be expressed specifically to benefit that land and to burden the land affected. Anyone trying to enforce a covenant must show that the benefit has passed properly to them.

In an estate situation, the benefit may still be with the developers but it may also be with the owners of the other plots on the estate. If certain conditions are satisfied at the time an estate is built, all the properties on it may be able to enforce covenants against the other plots, although such building schemes are rare.

If the tests cannot be satisfied, a breach of covenant may prove unenforcable. This may be the situation in this case. Alternatively, if there is one person or body benefiting from the covenant, they are entitled to waive the covenant - and may charge a premium to do so.

Your solicitor will have to investigate your neighbours’ title at the Land Registry before being able to give you a comprehensive answer.

What's your problem?

If you have a question for Fiona McNulty, email legalsolutions@standard.co.uk. We regret that questions cannot be answered individually.

Fiona is a partner in the property team at Thring Townsend Lee & Pembertons Solicitors www.ttuk.com.

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