If I had been given a pound every time a client came to me, unaware they had breached a covenant in their legal title, I would be looking forward to an early retirement. So what are covenants and how can they affect a property owner’s enjoyment of their home?
Put simply, a covenant is defined as an agreement between two parties to do, or not to do, something specific. Covenants are formalised in writing, usually in a conveyance or transfer, a document that is colloquially known as ‘the deeds’. Covenants can be negative agreements not to do something, or positive agreements to take action – and this is when matters can get tricky. There is a fundamental difference between negative covenants, which run with the land, and positive covenants, which do not. Positive covenants bind only the party who agreed to be bound by the original agreement. So if, for example, a covenant requires the owner of a piece of land to recite the national anthem every Thursday morning without fail, they should not worry if their vocal chords fail them as this covenant cannot be legally enforced.
The situation with negative, or restrictive, covenants is quite different. This fundamental difference is very important if you are looking to purchase a house or land with the intention of making modern-day changes because a covenant not to do something does run with the land and so is enforceable by the person with the benefit of the covenant. So if you are intending to build a swimming pool, construct an annexe, or develop the land in any way – and in these circumstances, ‘develop’ could be interpreted to mean an adaptation as simple as building a conservatory – then it is vital the deeds are carefully reviewed to discover any covenants that might prevent such development. As property lawyers, we often find tucked away in the paperwork a covenant that prevents a buyer from erecting any building or structure on the land without the consent of the seller.
And so to the moral of the story. Always ask your legal advisor to check the status of the deeds to see if any covenant exists that may affect what you want to do with your house – before you start any work.
For more information on all aspects of property law or to find out about our expert residential property conveyancing service, contact the George Ide team on 01243 786668 or email us at info@georgeide.co.uk.
Nicholas Smith. Partner & Head of residential conveyancing.
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