Fresh eggs for breakfast? Don’t count your chickens until you’ve checked your deeds

18 Jan 2019

You may think as you own your home you have the right to make alterations to the outside, to park a caravan or commercial vehicle, to work from home or even to keep chickens, but you could become liable for legal action if your deeds state otherwise.

There are now too many exceptions with planning rules, building control rules, compulsory purchase orders, The Access to Neighbouring Land Act, to name a few.

But there is one big exception which vast numbers of home owners are blissfully unware of – what our own title deeds say we can and cannot do on our own property. What lawyers call ‘covenants’. Not to keep chickens, not to hang laundry in the front garden, not to park a caravan or commercial vehicle, not to carry out a business form the property, not to play loud music, not to alter the exterior without consent, etc.

How can we prevent a neighbour complaining?

There is nothing worse than buying a house and receiving a knock on your door and a neighbour says your deeds do not allow your activity.
Obviously we can never prevent a neighbour knocking, whether they are right or wrong, but we can protect ourselves against them being right. Immediately you read this article, go and find your property deeds, and assuming the deeds are recorded at the Land Registry, turn to the section C headed ‘Charges Register’ and see what that section says. Any covenants will be in there. Any doubt, check what advice your conveyancer gave you, and if silent, ask them to clarify what the covenants are.

Now for some legal jargon

According to the Land Registry, a restrictive covenant “is a promise by one person to another, (such as a buyer of land and a seller) not to do certain things with land/property. It binds the land and not an individual person and therefore “runs with the land”. This means that the covenant continues even when the buyer sells the land on to another person. Restrictive covenants continue to have effect even though they may have been made many years ago and appear to be obsolete.” Their age per se is irrelevant.

But, whilst the first step is to check for a restrictive covenant, the next step is to determine whether it is enforceable. Some will be imposed only for a certain time (e.g. 5 years), some will prohibit caravans/vans without consent from a specific person or company, and yet others will appear to be permanent restrictions.

The latter is where the complications arise. How to challenge what appears to be an outright ban.

Restrictive covenants are highly technical even for lawyers, and even court cases come to different decisions. What they will look at is whether the builder enabled any neighbour to enforce the covenant against you – called a Building Scheme where similar covenants are imposed on every property in a development and the ability to enforce is given to each owner against each other – or failing this, they will look at the order of the house sales, as a restrictive covenant when imposed must benefit land retained by the builder. If the neighbour bought after you, then they may be able to enforce against you.

However, let us not forget the practical side of things, whatever the legal position. If your deeds have restrictions, then you too may have overlooked checking them, or you may have deliberately ignored them. Your conveyancing solicitor – if you just bought your property – should have drawn your attention to restrictive covenants such as these, and most do. Indeed, if you are thinking about purchasing a property, draw ‘covenants’ to the attention of your conveyancing solicitor.

If you are aware of the restriction, you may have taken a gamble that your neighbours will not enforce against you. That is risky and could be costly for you. Neighbours can club together reducing the legal cost per individual to minimal figures, and court action can be taken swiftly and effectively. You may also create a neighbour dispute in the process and that can impact the resale value of your property when you come to sell, as no buyer from you will want to move into a hostile environment.

So choose your conveyancing solicitor wisely. Whilst advice on the enforceability of covenants is not included in conveyancing quotes for house purchases, do choose a conveyancer who has expert solicitors in their Firm, who can separately provide comprehensive advice in this complicated area of restrictive covenants. Also re-consider the risks in deliberately ignoring any restrictions which are drawn to your attention by your lawyer.

 

Our property solicitors are among the best in the South. If you require legal advice from one of our dedicated property lawyers, contact us today on 0800 2800 421. We have offices in Salisbury, Southampton, Bournemouth, Poole and Winchester to meet your requirements.

© Tim Higham – Partner & Residential Property Solicitor Salisbury

Author

Tim Higham

Partner

Residential Property

Email me

01722 426985