What does it mean if there are covenants on my freehold property?
The word “covenant” means an agreement or a promise. In conveyancing, a covenant is a promise to do something or not to do something.
The law divides covenants over land into positive covenants (a promise to do something, such as erect a fence) and restrictive covenants (a promise not to do something, e.g. not to park a caravan on the drive). This distinction is important: the burden of a positive covenant will not automatically pass on with a property sale and will need to be promised again (in a document called a Deed of Covenant), whereas the burden of a restrictive covenant passes automatically on to the new owner.
The Land Registry will note on a registered title whether covenants are positive or restrictive. If there are positive covenants, the owner should know about them since they either gave the covenant themselves in the first place, or they have signed a Deed of Covenant agreeing to take it on. For example, in a relatively new housing development where the houses are freehold but the owners pay a service charge to a management company to look after the roads and green spaces, the owner would covenant to pay the charges and the management company would covenant to do the maintenance. When the property is sold, the new owners will need to covenant directly with the management company in a Deed of Covenant.
Where a restrictive covenant has been imposed just on the property you are buying, it will probably be enforceable. Your conveyancer will advise you on what the dos and don’ts are, and you should expect to observe them. In particular, if there is a covenant requiring you to obtain permission for development, you should investigate whether the person entitled to give that permission can be found. A covenant requiring consent to develop is in addition to and different from Planning permission and Building control. Homeowners often forget this and develop without consent, which creates problems when they come to sell.
Older restrictive covenants are very commonly seen on freehold titles. Many go back to the late 19th century. These old covenants usually imposed conditions which nowadays would be dealt with by the Planning Authority on large pieces of land which were being sold for house building. They are less likely to cause serious concern, but your conveyancer will consider whether the covenants have been breached and, if so, whether the covenant might be enforced.
The conveyancing team at MJP Law deal with covenants every day and will advise purchasers on what covenants exist and what that means. For more information, contact a member of the conveyancing team.
