How restrictive covenants can affect the sale of your home

A: A RESTRICTIVE covenant is a legal obligation and agreement whereby the buyer agrees with the seller, at the time the covenant was imposed upon and to bind the land by deed, to refrain from doing something or to do something. The latter is a positive covenant.

Shortly after the end of the Second World War legislation was introduced, now known as the Town and Country Planning Act 1990.

The implementation of the Act serves to control development so that any proposed extension, beyond permitted development rights, will require planning permission. Pre-war restrictive covenants were widely used as such planning controls did not exist.

However, restrictive covenants are always used when creating deeds selling new houses of plots, enabling the owner of the retained land to have the benefit of greater protective measures over and above any planning requirement.

When the 1935 conveyance deed of your house was created if the wording imposing the restrictive covenant states it is “for the benefit and protection of the sellers retained land” and also “the buyer for themselves and their successors in title covenant so as to protect the adjoining land” then the covenant is enforceable. This means the benefit transfers to the owners of the adjoining houses. However, a test of reasonableness will usually apply in these circumstances. For example does the extension impact on any adjoining houses in anyway, such as blocking light or privacy and have any other properties on the estate been extended in a similar manner?

Covenants can be varied by agreement between the land owner having the benefit of it and the land owner bound by it. The Lands Tribunal also have the power to modify or discharge a covenant under section 84(1) of The Law of Property Act 1925. The jurisdiction applicable to restrictive covenants require registration at Land Registry.

The fact the extension to your property has been in situ for such a long time does provide you with a degree of comfort. However, in law, ten years is an insufficient period of time to provide a concrete defence to breach of covenant. In these circumstances a period of 25 years is required.

Title indemnity insurance is the quick fix and relatively inexpensive solution to the problem. There are a number of insurance companies in the market providing this type of cover and at roughly the same premium which is calculated on the value of your home, not the added value of the extension.

To obtain insurance you will be required to confirm the extension is over 12 months old and there have been no objections raised against it by any adjoining owners.

To comply with the FSA requirements, a Demands and Needs Statement will be issued by the insurer.

John Robson is residential conveyancing manager at Ford & Warren Solicitors, Leeds