Restrictive Covenant Dispute Solicitors for Commercial Property Leases
Dealing with restrictive covenants on a commercial property can be complex. If you are considering developing or changing the use of your land or building, you may find yourself in breach of a restrictive covenant if you act without first taking legal advice.
It may be that complying with a restrictive covenant is obstructing your development plans, or perhaps you benefit from a restrictive covenant over neighbouring land or property that you wish to enforce effectively.
Whichever side of a restrictive covenant you find yourself on, expert legal advice is crucial to ensure that you fully understand your responsibilities, and to prevent any breaches, which can carry significant consequences. Lupton Fawcett can guide you through this complex area of law, offering you the best solutions available to your business. Our experts are skilled in many areas of commercial property law, and we’ll give you clear, practical advice tailored to your needs.
For expert legal advice on any type of Commercial Property Dispute contact Lupton Fawcett today.
What is a restrictive covenant?
A restrictive covenant is a restriction imposed by a seller of a property or piece of land that is designed to protect it; it will often prevent the buyer from using the land or property in a particular way. It is a binding agreement between the two parties, buyer and seller, which can be registered on the title deeds and must be adhered to. At the simplest level, it is a method of controlling the use of land or property, with courts able to take action against an owner who breaches a covenant. A restrictive covenant might prevent a property from being used for a particular purpose, or from being altered or renovated in a specific way. They are often used as a way of conserving the character of an area or to protect a property or land from unsympathetic re-development.
It is usually the case that a restrictive covenant is to the benefit, or advantage of one party, and a burden to the other. Understanding the effects of any restrictive covenant that affects you is crucial; breaching one could leave you liable for damages and facing fines and restorative actions.
A restrictive covenant relates specifically to the relevant property or piece of land and is separate from planning permission. If a restrictive covenant applies to a property, it will be set out in the deeds. It is the job of a conveyancer to highlight any existing restrictive covenants to a potential buyer, making sure that they are fully aware of the restrictions on them before they go ahead with their purchase.
Whilst initially agreed between two parties, a restrictive covenant will affect any subsequent owners of the land, binding them to the original terms. However, there are situations where covenants can become invalid. It is important to be aware as to whether a restricted covenant is enforceable, overly burdensome, or able to be modified.
Is this restrictive covenant still valid?
A restrictive covenant may have an expiry date or may turn out to be unenforceable in practical terms. It may cease to be binding or can become invalid under certain circumstances. For example:
- If no living person exists who is able to enforce the restrictive covenant
- Where the same person owns both the restricted land and the benefitted land
- If the covenant was only intended to affect the initial owners of the land, and not to be passed on to subsequent owners.
When restricted covenants are created, the Land Registry is not obliged, or able, to record the agreed benefit on the title to the land. This can often lead to difficulties in determining the beneficiary of the restricted covenant.
If you need assistance with a restrictive covenant, you may need to know:
- Whether or not a restrictive covenant exists
- Whether an existing covenant is valid
- If a restrictive covenant exists – does it apply to you?
- Where a restrictive covenant is impacting your potential business or development plans, is it possible to have it modified or declared invalid?
Whatever your needs, our property litigation experts at Lupton Fawcett are on hand to help you to structure a course of action.
Enforcing restrictive covenants
If you or your business benefit from a restrictive covenant and find it has been breached by the other party, you are able to bring proceedings against them to enforce it, providing that it is valid. Where a restricted covenant has been breached, you may be able to recover damages, or to obtain an injunction preventing any further breaches. Before taking any action, it’s vital that you make sure that you are fully aware of your legal situation before taking any action. Lupton Fawcett can offer advice and solutions based on your unique circumstances.
Resolving breaches of restricted covenants
Restricted covenants can be the cause of dispute for the owners of land or property subject to them and resolving them can be complex. Changing the use of your land or developing a property could result in the breach of a restrictive covenant. If you do undertake work that constitutes a breach, such as building a structure on land where this was forbidden, you may be made to demolish it and restore the land to its former state.
If you have breached a restrictive covenant, you will need to seek legal advice to decide on what action to take. If you think that your business plans may risk a breach, but you think that the benefiting land owner is unlikely to take any action against you, you may be able to take out an indemnity policy to insure against any subsequent claims against you.
This could be problematic however, if you later come to sell the property. Breached restrictive covenants may cause issues and a buyer might be wary of taking on the responsibility; they themselves would be liable for any consequences if later action were to be taken.
There are several courses of action available to resolve a breached restrictive covenant:
- It may be possible to demonstrate that the restrictive covenant is invalid; either due to illegality or the original deeds being misdrawn.
- The beneficiary may be open to negotiating either the modification of the restrictive covenant, or they may agree to grant retrospective planning permission.
- It may be possible to apply to the County Court to have the restrictive covenant declared unenforceable.
- A property owner can apply to the Lands Chamber of the Upper Tribunal to either modify or remove a restrictive covenant under certain circumstances. This may involve paying compensation to the beneficiary of the covenant.
Deciding on the right approach can be challenging, as you need to make sure that the solution you choose is appropriate to your situation both now and in the future. Our legal experts will make sure that you have a full understanding of your legal situation and will guide you towards making the most effective and convenient solution.
Why choose Lupton Fawcett?
At Lupton Fawcett, we fully understand how important it is to receive thorough, accurate advice when dealing with issues concerning restrictive covenants. This area of law can be extremely complex, causing lengthy disputes and potentially bringing costly and significant consequences if mistakes are made. A thorough assessment of your case, no matter which side of a restrictive covenant you are, is vital.
We have experts who can assess the options available to you, and who will work with you to choose the best course of action for the situation. We have a wealth of experience gained over more than a century of advising clients on a full range of legal matters. Our team will always keep your business objectives at the forefront, seeking the most efficient and effective resolution for the problem.
We work with clients, both individual and commercial, throughout Yorkshire, The North of England, and across the UK & Ireland, and we pride ourselves on offering honest, clear and advice perfectly tailored to your needs.
We provide a personalised service, with sector specialists and extensive resources to ensure we are giving you the best solutions to your problems.
Our Commercial Property Litigation Solicitors act regularly for clients across the United Kingdom including Bradford, Birmingham, Hull, Leeds, Liverpool, London, Manchester, Sheffield, York and Nottingham. We can support your needs wherever you live in England, Wales & Northern Ireland.
For a no obligation initial consultation please either call the office or leave your details using the contact form at the top of this page. We’ll be happy to help.