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This is a promise made by deed by a Covenantor (the person giving the promise) to do or not to do certain things stated in the deed for the benefit of the Covenantee (the person receiving the promise).
Where a covenant is “Restrictive” and involves a “Freehold”, the Covenantor promises not to do something stated in the specific deed to the land/property for the benefit of the Covenantee.
The subject matter that is restricted can vary from caravans being parked on the property, using the property for the purposes of a business or even the placement of a new satellite dish.
The enforcement of such covenants is a method for restricting or controlling the use of the land to avoid undesirable effects on other people and their property.
However, a Covenant needs to satisfy certain conditions in order to be able to be enforced or restrict another.
Rules were laid down for a burden of a covenant to pass in the case of Tulk v Moxhay [1848] 41 ER 1143), as follows:
A Positive Covenant, in a Property context, is one that places a responsibility on a party for something to be done or money to be spent, say for example to build and maintain a fence or to repair a shared roof.
The terms of the Covenant need to be considered to identify whether a breach has occurred, and if so, this can give rise to an award of damages and/or an injunction (where the breach is causing or is likely to cause continuing damage).
It is more common for the courts to now award damages instead of an injunction; in some cases based upon the price, the Covenantor might be expected to negotiate in order to have the Covenant released, rather than by enforcing an injunction.
It is possible under Section 84 Law of Property Act 1925, but not easy, to apply to the Upper Tribunal for a discharge or modification of a Covenant.
Compensation can be awarded to those affected by any modification or discharge that is made. But in order to do so you must show that the Covenant is:
If you are impacted by a Freehold Covenant or believe you may be, contact our Property Law experts who can advise on Property matters such as Freehold Covenants and Property disputes.
We can talk through your options and discuss your next steps and how we can assist.
Please feel free to contact us to discuss with no obligation 0808 168 5457, email us at [email protected] or fill out our online enquiry form.
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Whilst our solicitors are based in one location, we are always happy to try to make an appointment to meet you in any of our office locations, if this is more convenient for you.
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Gregory Abrams Davidson Solicitors and GAD Commercial are trading names of National Law Partners Limited, registered in England and Wales under number 08312439 and are Authorised and Regulated by the Solicitors Regulation Authority, under number 646548. Gregory Abrams Davidson Solicitors registered office: 20-24 Mathew Street, Liverpool, L2 6RE. VAT Registration Number: 290 6677 68.