Legal Q&A: what is a restrictive covenant and what will happen if I breach one to build an extension?

Surely 100-year-old restrictive covenants are meaningless today?
Fiona McNulty3 February 2018

Question: I am buying a semi-detached house that has a number of restrictive covenants dating back nearly 100 years. I want to build an extension but I think these restrictions could stop me.

What options are there to remove these covenants? And what happens if I build the extension anyway (with planning permission) and it is later discovered I have breached the covenants? I can see why these covenants might have had some purpose all those years ago but they have no function today.

Answer: The age of the restrictive covenants is irrelevant. If they are enforceable and you breach them, then the person who owns the land that benefits from those covenants could apply for a court order requiring you to remove the extension and pay compensation.

If the owner can be identified, it may be possible to negotiate a release or modification of the restrictive covenants.

Alternatively, an application can be made to the Upper Tribunal (Lands Chamber) for the restrictive covenants to be discharged or modified.

You might be able to argue that the covenants are obsolete or unreasonable — but this can be a costly process.

Another possibility is indemnity insurance covering the risk of the person having the benefit of the restrictive covenants seeking to enforce them.

Before putting such insurance in place no approach can be made to whoever benefits from the covenants — and therefore you won’t get a chance to strike a deal — as indemnity insurance is unlikely to be available in that case because notice would have been given of a possible future breach.

If you have a question for Fiona McNulty, please email legalsolutions@standard.co.uk or write to Legal Solutions, Homes & Property, London Evening Standard, 2 Derry Street, W8 5EE.

We regret that questions cannot be answered individually, but we will try to feature them here. Fiona McNulty is a solicitor specialising in residential property.

These answers can only be a very brief commentary on the issues raised and should not be relied on as legal advice. No liability is accepted for such reliance. If you have similar issues, you should obtain advice from a solicitor.