Island Life Magazine Ltd October/ November 2012 | Page 144

Legal issues with Terence Willey & Company

Should we be concerned
with restrictive covenants
affecting our land?
The vast majority of land titles within
England and Wales are subject to
restrictive covenants leaving only
a few which are described as “free
from encumbrances”. In the case
of registered land such restrictions
affecting the land are shown on what is
known as the Charges Register of the
registered title, either being set out in
full or by way of reference to the Deed
that created them. Often difficulties
arise in locating either originals or
copies of the Deed that imposed such
restrictions on the land leaving no
alternative but to seek an Insurance
Indemnity Policy for the protection of
someone coming forth in the future
and making a claim for breach of
covenant.
It is important to consider and
appreciate why and when restrictive
covenants are imposed on land. They
can only be imposed where there is a
situation known as a dominant and
servient tenant created by the division
of land upon disposal. Specific
covenants and restrictions can then
be imposed for the protection of
the retained land. This can include
covenants as to fencing, restrictions
upon further development or building
works including alterations or
additions to a property, change of
usage or even a requirement simply for
quiet enjoyment. For instance it may
be a specific planning requirement
that areas of land are left undeveloped
and retained as open space areas to
be maintained specifically subject to
imposed conditions. In addition to
any applicable Planning Permission
or Building Regulation approval from
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the Local Authority, consents may
also be required from the original land
owner or a developer of such land
for the erection of further buildings,
outhouses, sheds and extensions to a
property.
I am often consulted concerning
the consequences of non-compliance
and it should be noted that restrictive
covenants can only be enforced by
the original land owner who imposed
the covenants in the first instance,
or their successors in title to such

land. Often land is handed down
through generations and in some
cases covenants have been in place for
almost 100 years, but it does not make
them less enforceable. Some years ago
consideration was given by the Land
Registry to seek an amendment, by
legislation, to only allow registration
of covenants, restrictio