What is a covenant and what is its role in conveyancing

by Iain Mason

Published on 4th July 2021

The word ‘covenant’ often crops up in the house buying and selling process, and the presence of a covenant on the title deeds to property or land can have implications for the conveyancing. But what is a covenant and how is it involved in a transaction?

what is a covenant? a covenant may even apply to a farm gate

What is a covenant

A covenant is a provision or a promise made in a relation to a piece of land or to a property. This can be a positive or a restrictive covenant. A positive covenant is a promise to adhere to something or to take action over something; a restrictive covenant, conversely, is a promise not to do something.

A common example of a positive covenant would be a promise to maintain a boundary wall or fencing, or perhaps contribute to the upkeep of any assets shared with neighbours, like a driveway or a drain.

A common restrictive covenant would be a promise not to, for example, build on a piece of land or use a building for a particular purpose.

How does a covenant affect property sales?

There’s no straightforward answer to this. Let’s take our example of a positive covenant of promising to maintain boundary fencing or walls. Buyers might be happy to proceed because they regard this as a reasonable ‘promise’ to make.

It’s also worth noting that positive covenants are often made as a contract between the original parties and don’t therefore bind subsequent owners. So if there is a positive covenant on a property or land you are hoping to purchase, it may no longer be effective.

The situation is usually more complicated with restrictive covenants, which will generally run with the land. In other words, they carry on regardless of change of ownership.

Some covenants date back decades, even centuries and, while they made sense when first imposed, they may be outdated for modern times yet still have to be adhered to and accepted or, alternatively, removed.

It can be complicated working out who has the benefit of a restrictive covenant. For example, if a restrictive covenant was applied to a large estate which has subsequently been parcelled up and sold, then there may be a number of new owners and landlords to consider.

Can a covenant be removed?

Restrictive covenants can be removed or modified by the Lands Chamber of the Upper Tribunal (previously the Lands Tribunal), and the applicant would first have to prove there were grounds for its removal.

Most commonly cited grounds are that the covenant is obsolete or it is an unreasonable impediment.

Unusual covenants

We’ve mentioned restrictive covenants prohibiting common activities, like building on land or changing its use. But there are also some more unusual ones we’ve heard of.

One covenant prohibited the use of land for any house or caravan on wheels, unless being used to house poultry – so no problems here if you are a chicken farmer keeping your hens in shepherds huts.

Another banned a property from being used as a public house or for any ‘objectionable trade’ – so here, no chance of running a pub or, perhaps, house of ill repute!

A third banned activities or trade that would be a nuisance to the neighbours – especially keeping pigs!

Covenants have even featured in Jeremy’s Clarkson’s Amazon TV series, Clarkson’s Farm. The eponymous presenter needed to use a gateway access into his field for customers to the new farm shop he’d built there.

However, it transpired there was a covenant on the gateway, which belonged to a local resident, stipulating that the gateway should be used only for agricultural vehicles.

Joking aside, it is clear that covenants are complicated and the presence of one may have implications if you are buying or selling property or land. Untangling the details of a covenant, who has the benefit, and whether it should or can be removed, may all slow down the conveyancing process.

The answer is to engage professional conveyancers – like the solicitor-led team here at Optimum – who will go through the detail and advise on the best course of action, as well as help drive through the buying and selling process to avoid any unnecessary delays.

If you are buying or selling a property, then please get in touch for advice from our legal team.

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