A. W. & C. Barsby: Legal Research and Publishing

Chapter 7 - Restrictive covenants

7-4 The rules which determine whether a restrictive covenant can be passed on are complicated, and the text gives only a brief summary which will be true in most cases.

7-9 Link to Land Registry for information about registered land generally.

7-10 A restrictive covenant will be registered as a class D(ii) land charge, if it was created after 1926. (Covenants between landlord and tenant are not included.)

7-10 This a very brief explanation of an aspect of the law, which is complicated.

7-11 In Roberts v Howlett [2002] 1 P&CR 19 there was a restrictive covenant which prevented property from being used otherwise than as a "single private dwelling". The court decided that this did not prevent the property from used for student accommodation, because the students formed a household.

7-25 Link to the Lands Tribunal.

7-29 Planning. The fact that planning consent has been granted is important, but not decisive. See for example Diggens Application (No. 2) 2 EGLR 163, a Lands Tribunal case, in which the Lands Tribunal, refused to intervene so that new houses could be buit in a some back gardens.

7-33 An example may help to make the point. Suppose that X has a large garden, and in 1980 sells off half of it to Y so that another house can be built. To safeguard his position, X imposes a restrictive covenant, so that the land sold off can only be used for one house. Twenty years later, Y applies to the Lands Tribunal to modify the restrictive covenant so that one more house can be built on the land. The measure of compensation for X, if the application succeeds, can be either (a) the loss or disadvantage suffered by X, perhaps because the amenity of his remaining land is reduced, and there is more noise and disturbance, or (b) the amount by which the restrictive covenant reduced the value of the land in 1980 - but not both (a) and (b). X cannot argue that because the new building plot will be worth £50,000 to Y, this is what X should be paid in compensation. (But if Y was dependent upon a right of way granted across X's remaining land, and if the right of way was limited so that Y could not build another house, the Lands Tribunal would not have the power to intervene, and X would be able to negotiate freely in fixing a price with Y.)

7-36 Link to Lands Tribunal for reports of recent cases on restrictive covenants (under the heading "LP - Restrictive Covenant). These are well worth looking at, because they show how the Tribunal carefully weighs up the facts and applies the tests laid down in s. 84 of the Law of Property Act 1925.