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Property legal Q&A

21 October 2016

Anthony Garcia-Deleito, Senior Associate answers questions on residential property matters.

Q: We are looking to extend our property but our neighbour has objected to planning citing restrictive covenants. How do we find out what covenants affect the property and what is the best way of dealing with them?

It is possible to gain planning permission but then be faced with a separate private land action by an objector on grounds of a restrictive covenant. This can happen as planning law does not have to consider title restrictive covenants, which are purely a matter of private land law and are not part of the public policy considerations of the planning system.

For a restrictive covenant to run with land it must be restrictive in its meaning, be clear as to what land it relates to and also clearly identify the benefit to other specific land. Restrictions might limit the use of the land but there has to be another piece of land which can demonstrate a benefit. There must be “notice” of its existence (identifiable by the public record of registered titles) and covenants made after 1 January 1926 must be registered in the Land Charges Register to be enforceable even where the title is unregistered.

Restrictive covenants will usually be found in your title deeds. If you have a lease, restrictions will likely be in one of the Schedules to the Lease. With freehold properties, the covenants may be extracted from past Conveyances into the register entries of registered title or, with unregistered land, in the Conveyances. All title deeds and entries need to be inspected to check whether any restrictive covenants are lurking.

You have several options to deal with any restrictive covenants. Depending upon various factors, such as the age of the covenant or the evolution of neighbourhood since its inception, the covenant can be discharged by the Land Tribunal or modified to permit this specific development.

One might offer the objector a compensatory amount to off-set any modifications of the covenant. This is easier when planning permission is already granted, since the value of the development and compensation due can be assessed.

If all persons having the benefit of the covenant are identifiable, it may be possible to strike a bargain and make a payment to purchase the release of the covenant by private negotiation. This can be problematic where the benefiting land has itself subdivided into the hands of a number of owners.

Alternatively, you may wish to consider title indemnity insurance if currently there is no valid objector and you have obtained planning permission. This will provide a means of redress to an objector should they emerge with a valid claim, or indeed, redress to yourself should there be a diminution in value to your property as a result of a successful claim. This is often commercially the easiest and quickest route but is often only possible if no overtures have been made to other parties.

Where the objector is known, one should take legal advice to analyse the title to see if the claim is enforceable.

By Anthony Garcia-Deleito

For further advice on the above topics, please call me on 01483 543210 or alternatively email AnthonyGarcia-Deleito@BarlowRobbins.com