Freeing your land from old covenants

Farming is an ever-evolving business, with needs and demands often dictating that the use of the land requires change.

You may want to erect new structures, change the way fields are used, or even sell off part of the land to developers. However, such plans can often be dealt a blow by the existence of a restrictive covenant – a contractual obligation which regulates what the landowner can or cannot do with their land.

Andrew Little, Commercial Property Solicitor and agricultural property law specialist at Pearsons & Ward in Malton explains what a restrictive covenant is and how you can go about changing or removing them to allow you to use your land as you wish.

Restrictive covenants are usually written into a transfer deed between the buyer and seller when a piece of land is sold. Properly drafted, they attach themselves to the land, rather than the parties to the sale. So, unless they have been modified or discharged, they continue to apply indefinitely even when the land changes hands or their purpose becomes obsolete.

Legally binding and enforceable by the courts, restrictive covenants come in many different forms, such as dictating that a piece of land should only be used for residential or agricultural purposes, or restricting the height, size or quantity of a development.

If you breach a restrictive covenant, its beneficiary can take you to court and request an injunction to uphold the covenant and require any finished modifications or building works to be reversed or torn down. You could also be ordered to pay damages to the beneficiary of the restrictive covenant.

Modifying or discharging a restrictive covenant

The first step to getting a restrictive covenant changed or removed is to establish whether it is still enforceable. This involves checking whether there is an identifiable beneficiary of the covenant, whether it applies to what you want to do, and whether it was properly registered (if your land is registered it will appear on the title deed at HM Land Registry; if it is unregistered, it will appear on the original conveyancing deeds and also the Land Charges Register).

If there is a chance that the restrictive covenant is enforceable, you could contact the beneficiary to argue your case for why it should be modified or discharged. It is highly recommended that you engage us as experienced property solicitors to help you through this process as we have a thorough knowledge of the relevant law and can ensure that your case is put forward to the beneficiary in the most robust possible fashion.

If negotiation or an alternative dispute resolution method such as mediation fails, you can go to court to ask for a declaration that the covenant is unenforceable. Alternatively, you can go to the Upper Tribunal of the Lands Chamber to request that the covenant be modified or discharged. The Tribunal will assess whether the restrictive covenant can be discharged or modified on one of the following grounds:-

1. the covenant is obsolete;
2. the covenant impedes some reasonable use of the land;
3. the beneficiary has expressly or impliedly agreed to discharge or modify the covenant by their acts of omissions;
4. No injury will be caused to the beneficiary by discharging or modifying the covenant.

In the case of historic restrictive covenants which have already been breached for a period of time, you can in certain circumstances obtain an indemnity insurance policy instead of approaching a beneficiary or taking court action. This is often a far cheaper method of protecting your development interests, but it is important that you speak to us as we are solicitors with expertise in this area so that you can fully understand the risks involved in choosing any of these options.

For more information on getting a restrictive covenant modified or discharged, or any other enquiries regarding agricultural or property law, please contact Andrew Little on 01653 692247 or email Andrew.Little@pearslaw.co.uk to see how we can assist.