Freehold Disputes – Freehold Covenants
Freehold covenants are, in broad terms, obligations relating to land. They can be either “positive” or “negative” / “restrictive” in nature. Positive covenants are obligations that require a party to do something, such as contribute towards a cost or maintain a boundary feature. Negative / restrictive covenants are obligations that generally prevent land from being used in a certain way, which might include building on or developing the land, or using it for business purposes.
Frequently Asked Questions
Are freehold covenants always enforceable?
No. There are strict rules governing whether freehold covenants are enforceable. The answer often depends on whether the land has changed ownership since the covenants were entered into, and also the nature of the covenants in question, in particular whether they are positive or negative.
Can covenants be modified or discharged?
Yes. It is possible in certain circumstances to apply to the Upper Tribunal (Lands Chamber) for a covenant to be discharged, either wholly or partly, or modified. The circumstances in which a covenant may be discharged or modified include where:
- the covenant is obsolete;
- the covenant impedes reasonable use of the land;
- the beneficiaries of the covenant have agreed to its discharge or modification; and / or
- the discharge or modification will not injure the beneficiaries of the covenant.
My property is subject to a covenant – what should I do?
If you intend to do something which would put you in breach of an enforceable freehold covenant, it may be sensible to obtain covenant consent first. You should ascertain the identity of the beneficiary or beneficiaries, usually the owner of any land that benefits from the covenants and / or the original contracting party, and agree a formal deed of consent and / or modification which can be registered against your title. If you proceed without consent, you risk a civil claim from the beneficiaries, which might include a court order compelling you to undo whatever you did to put yourself in breach, including removing or reversing the works carried out in breach. Note, however, that disclosing any breach of a freehold covenant to the beneficiary of such a covenant may void any existing indemnity insurance policy or make it impossible to obtain indemnity insurance in future.
Can Preston Redman advise on freehold covenants?
Yes. Call Preston Redman’s helpful property litigation team on 01202 292 424 or use the enquiry form below. You can also contact Preston Redman’s head of property litigation, Hugo Haub, by email at hksh@prestonredman.co.uk
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