Uncovering covenants

Running my business from my prospective new home will not be possible, my solicitor tells me, because of restrictive covenants in the deeds. Can you explain the implications of these, and what would happen if I ignored them?

Q: Running my business from my prospective new home will not be possible, my solicitor tells me, because of restrictive covenants in the deeds. Can you explain the implications of these, and what would happen if I ignored them?

A: Your solicitor has discovered that there are restrictive covenants in the title deeds and a typical covenant is one against trade or business. Restrictive covenants are a form of private planning control; they are restrictions on the development or use of land, enforceable by one landowner against another.

For it to be a binding restrictive covenant, it must burden one property (the house you are buying) and benefit nearby, clearly ascertainable land (such as the neighbouring houses on the development). If you ignore a covenant, those with the benefit of the covenant could seek a court injunction to prevent any breach and could sue you for damages if they suffer loss due to your breach. It can be difficult to establish who has the benefit of the covenants.

Q: The current owners of the house have built a conservatory, but my solicitor says this may have to be removed because the sellers have breached a covenant against alterations. Can you suggest a course of action?

A: It may be possible to obtain an insurance policy that will cover liability for the breach of covenant. Another possibility would be to seek retrospective consent from those with the benefit of the covenant or a release of the covenants. But once you have approached the neighbours and made them aware of the breach, you will not be able to obtain indemnity insurance.

Q: My boyfriend has a white van and my solicitor tells me that he won't be able to park it in my driveway. Is this also due to restrictive covenants?

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A: Yes, a covenant against trade vehicles is another typical one. An estate of houses may be subjected to restrictive covenants designed to protect its look and amenity.

Q: Are all the covenants in the deeds enforceable?

A: No, only those of a negative or restrictive nature are enforceable against future owners. Positive covenants, such as a fencing one, will bind only the original owner.

t Philippa Rudd is a Partner with Cozens-Hardy & Jewson Solicitors, Castle Chambers, Opie Street, Norwich, NR1 3DP.

Tel: 01603 625231

www.cozens-hardy.com

t If you have a question or dilemma over the legalities of buying or selling a property which you would like to appear in this supplement, please contact Philippa by e-mailing caroline.culot@archant.co.uk

t These questions and answers are not intended as a complete statement of the law. Specific legal advice should always be taken.