Restrictive covenants represent potential areas of dispute for many owners of commercial and residential property, including developers.

Developing real property, or changing the use of your land, can lead to breaching restrictive covenants. On the other hand, complying with restrictive covenants might obstruct your business objectives or any other development plans you have. Either outcome may cause problems.

Alternatively, your property may benefit from a restrictive covenant over neighbouring land, and you need help enforcing the covenant.

Trying to determine whether a restrictive covenant is valid often involves specialist legal expertise. We can help your business to navigate this complicated area of law.

Luscombe Gray was founded to provide clients with clear and honest commercial and property advice, with a strong commitment to delivering an ethical and effective legal service.

If you would like to discuss how Luscombe Gray can help you or your business, please do not hesitate to contact us.

The validity of restrictive covenants

Usually, a restrictive covenant will bind the successors in title of the land to the same extent as the original parties which agreed it. However, certain circumstances may mean the covenant is no longer valid or binding on the land involved. These include:

Situations where the restrictive covenant does not confer a ‘benefit’ on an adjoining piece of land – in most cases. There are exceptions to this, however, when the restrictive covenant has been imposed by certain organisations, such as local authorities or planning authorities.

When restrictive covenants are created without the intention that they bind the subsequent owners of the land.

When the restricted land and the benefitted land are owned by the same person.

When there is no there is no person in existence who could enforce the restrictive covenant.

It can sometimes be difficult to identify who benefits from a restrictive covenant as the Land Registry does not have any obligation or power to record the benefit on the benefitting land’s title.

Luscombe Gray can assist you with determining the existence, and assessing the validity, of restrictive covenants. We can also provide you with practical advice on how to resolve issues over restrictive covenants.

Resolving disputes over restrictive covenants

If you or your business are at risk of breaching a restrictive covenant, and there is little likelihood of enforcement action from the benefiting land owner, an indemnity policy may be appropriate.

However, breached restrictive covenants may cause difficulties when trying to sell your real property. You will effectively be asking the buyer to take on responsibility for your breach of the covenant, because any enforcement action will be taken against whoever is the owner of the property at that time.

There are various other options in relation to restrictive covenants, including:

  • An application to the Lands Chamber of the Upper Tribunal to discharge or modify a restrictive covenant, provided you can demonstrate certain grounds apply. Compensation will usually be payable to the beneficiary of the restrictive covenant.
  • An application to the County Court seeking a declaration that a restrictive covenant is unenforceable.
  • Negotiating the release or modification of a restrictive covenant with the beneficiary or beneficiaries.

Luscombe Gray can provide specialist advice in relation to the merits of each option and the most appropriate course of action to ensure that your objectives or the objectives of your business are met.

Enforcing restrictive covenants

Alternatively, if you or your business are looking to enforce a restrictive covenant, provided the covenant is valid, you may be able to recover damages or obtain an injunction to stop the conduct which breaches the covenant.

It is crucial to seek legal advice from an expert property litigation solicitor before taking any action. At Luscombe Gray, our legal solutions are in reality. You can be sure of receiving useful guidance focused on your achieving your objectives or the objectives of your business.

Instructing Luscombe Gray

Luscombe Gray is a boutique commercial and property litigation firm, providing a tailor-made service to all of our clients.

We believe first-class commercial legal support should be available to all. Whether you need advice as an individual, or on behalf of your business – whatever its size – we are more than willing to provide our services and put our specialist skill and knowledge at your disposal.

Your case will be handled by Chris Luscombe personally, so you can be certain that you or your business will be able to call upon the expertise of an experienced commercial and property litigation solicitor. Throughout his career, Chris has helped a wide range of clients with their property disputes, from private clients, to small businesses, national pub companies, and multi-national telecoms giants.

Luscombe Gray is based in the heart of Yorkshire, in Harrogate, with the reach to assist clients across the country.

If you or your business need legal support on a dispute concerning restrictive covenants, contact Luscombe Gray for clear, ethical, expert advice.

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