Covenants are essentially ‘agreements’ or ‘obligations’ either to do or not to do something. They can be found in many legal documents but in the context of property law they usually refer to an agreement/obligation made in relation to a property.
There are also different types of covenants for instance:-
- Positive Covenants – this is an obligation/ agreement to do something or take some positive course of action. An example of a positive covenant would be to maintain and repair a fence or to pay a service charge. A positive covenant can only be enforced by the original parties to the contract and cannot be enforced by or against any successors in title ( i.e. future owners of the property), unless an indemnity for the covenant is entered into in the transfer deed to the new owner(s).
- Restrictive covenants – as the name suggests a restrictive covenant is an obligation which restricts your use of the property. Restrictive covenants ‘run with the land’. In other words. they are forever binding the property and potentially restrict the use of the land for any future buyers. Therefore, it is important to note that just because a covenant has been agreed a century or so ago does not mean that it will simply expire. It potentially can be enforced on new buyers today by the original contracting party (whether a private individual or business as it may be) who has the benefit of the covenant.
Why Covenants?
As stated above Covenants are agreements or obligations found in deeds (whether registered or unregistered) either to do or not to do something. Common restrictions/obligations include but are not limited to:
- To prevent a property from being used as a place of business (i.e. renting the property as an Airbnb for instance )
- Alcohol may not be sold from the property
- To prevent livestock from being kept on the property (i.e. ducks and chickens)
- To prevent alterations to a property (i.e an extension)
- The obligation to maintain a shared driveway and contribute to the repair of the same.
- The obligation to maintain a fence
- Not to do or permit to be done any act or thing which may become a nuisance or cause annoyance to the neighbours
- To prevent a caravan or boat to be kept on your driveway (sorry to those who are avid campers and sailors!)
- Not to grow any vegetables in the front garden area of the property (warning to those ardent gardeners among us!)
The Consequences of the Breach
Ultimately, breaching a covenant could lead to legal action being brought against you, as well as potentially having to undo any of the offending work (i.e. alterations to your property) in addition to the expensive legal fees that will undoubtedly follow. Further it is important to note that if a covenant has been breached it is not an adequate defence to say ‘it was like this when I purchased it’ or ‘it was not me it was the sellers’. As stated above the covenant does not expire and as a result you are as culpable as the person who committed the breach.
It is therefore extremely important when purchasing a property that you read through the covenants carefully and inform your solicitor immediately of any that may be of concern to you in terms of your proposed use of the property. Further it is important that you address any covenants which you think have not been complied with following your inspection of the property.
As a result, it is imperative that when you purchase or sell a property you instruct competent experienced professionals who can guide you through the process and avoid these pitfalls. Our team pride themselves in offering a personal bespoke service. Please contact us for a quote today by emailing our dedicated property team at [email protected] or [email protected] to see if our team can assist you when selling and buying your property.