Many properties in England have covenants on their legal title which regulate use of the property and restrict development to the property.
The key points to check when looking at covenants on the title to your property is from whom you would need to obtain consent if the covenant is worded to say, for example, that you cannot extend the property without a person’s written consent and who can still take action against you if you breach the covenant.
It is sometimes the case that covenants were imposed over 100 years ago and the people who imposed them are no longer alive.
If anybody needed to take action to contend that a covenant had been breached they would generally need to prove three things:
- They still own land adjoining your property.
- You have developed your property in breach of the covenant.
- Their land has been detrimentally affected, usually they see the value of their property reduced, because of that breach.
Where the person who originally imposed the covenant on the property no longer meets these three criteria they in most circumstances could not enforce the covenant.
The recent case of Birdlip Ltd v Hunter and another looked at who else could enforce a covenant that has been breached. This is because in certain cases where residential developments are built at the same time, a “building scheme” can arise.
For example, if you buy a new property and in your title deeds there is a covenant to say you cannot instal a satellite dish on the outside of your house, once the builder has sold all of the plots of the development they could not claim land they own is being devalued.
However, if the title for your property has covenants that are worded in a certain way, the neighbours who bought plots adjoining your property can enforce the covenant and ask you to take the satellite dish down. This is because the benefit of the covenant can be stated to pass to “all successors in title”.