Removal of Covenants
Covenants
The term covenant seems complicated and unusual. As a result, people are often nervous about them and are puzzled as to what a covenant is and its purpose.
To bust some legal jargon open, it is no more than a contract relating to land set out in a deed (that is a written document which has been witnessed). They are widely used in conveyancing to allow a seller to retain rights over the land by a covenant, for example not to allow building on the land sold. They are also used regularly by a purchaser of land to acquire rights, such as an uninterrupted view of the sea.
A covenant not to do something is known as a restrictive (or negative) covenant.
A covenant making someone do something is a positive covenant. They are less common, but an example would be that the buyer of a piece of land has to keep a retaining wall that supports a next door building or contributing to the upkeep of a shared drive.
Removing a Covenant
About two thirds of properties have a covenant which affects them. These can have great significance. Classic examples are wording saying that a piece of land cannot be built on or that it is only to be used for a particular use.
Properties can have a covenant preventing the carrying out of a trade or business. In the era of working from home this has become a major issue for many householders. You might wish to convert a garage into a business place or put up an upmarket shed, as say, a workshop or for some other business purpose.
Despite the existence of a covenant on a title that is by no means the end of the story. There can be a number of routes available for removal.
Examples of situations which have come before the courts are:
- Converting a garage into a dog grooming parlour.
- Running a beauty salon from a cabin in a garden.
- Converting part of a field into a menage (schooling arena) for horses.
- Land covenanted only to be used for car parking to be changed to development land for housing.
Situations where it is been possible to remove (discharge) a covenant are:
- Where there has been a failure to take action against the breach of the covenant for a long period of time.
- Where the property or neighbourhood has changed so that the covenant ought to be deemed obsolete. This includes considering what is reasonable use of the land and in this regard the courts can take into account council development plans.
- Where the individual who has the benefit of the covenant has agreed either expressly or by indication for the covenant to be discharged.
If you have a covenant registered against your property and need advice as to whether can be removed then do contact us to find out how we can assist you.