By Legal Futures Associate InfoTrack [1]
Restrictive covenants remain one of the trickiest aspects of residential conveyancing. These binding promises can dictate what owners may or may not do with their land and frequently surface during title investigations.
A recent webinar with Ian Quayle, Managing Director of IQ Legal Training, and Rosella Lanza, Content Analyst at InfoTrack, explored the complexities of restrictive covenants and offered practical guidance for solicitors. The session focused on how to identify, advise on, and manage these issues within residential transactions, and is now available to watch on demand [2].
What are restrictive covenants in residential conveyancing?
Restrictive covenants are contractual obligations that limit land use. Although originally agreed between contracting parties, they often continue to bind successors in title. This makes them a critical due diligence requirement for conveyancers, who must:
- Identify covenants in title documents.
- Interpret enforceability – who benefits, who is bound, and whether the covenant serves a valid purpose.
- Assess the potential impact on the buyer’s intended use of the property.
The key challenge is aligning these legal considerations with the client’s objectives. A seemingly straightforward nuisance covenant, for example, may in practice restrict building works or extensions.
Are restrictive covenants enforceable? Key legal considerations
Enforceability: Restrictive covenants generally bind successors only if they are negative in nature. They may not be upheld if they are personal, fail to benefit identifiable land, or are anti-competitive.
Protection: For unregistered land, restrictive covenants must be protected by a Class D(ii) land charge. On registered land, they appear as notices in the charges register, although registration alone does not guarantee enforceability.
Remedies: Breaches can give rise to injunctions, damages, or in some cases, demolition orders.
Variation or Removal: Section 84 of the Law of Property Act 1925 allows application to the Upper Tribunal to discharge or modify covenants if they are obsolete, contrary to public interest, or provide no substantial practical benefit.
Practical advice for conveyancers
Solicitors advising on restrictive covenants should:
- Link advice directly to the client’s objectives. Will the covenant hinder their intended use?
- Be cautious about scope of wording, as courts may interpret covenants broadly
- Consider defective title insurance where enforceability is uncertain, ensuring that cover levels are appropriate for the risk.
Recent cases, Nottingham Patent Brick & Tile Co v Butler (1886), Clincare Ltd v Orchard Homes (2004), and First Tower Trustees Ltd v CDS (Superstores International) Ltd (2018), highlight how courts deal with modern disputes and conveyancing risks, particularly where covenants or representations become outdated or unsupported by proper verification.
How technology simplifies restrictive Covenant reporting
Beyond legal interpretation, the practical challenge for conveyancers lies in efficiently reporting on restrictive covenants and related issues. Manual reporting can be time-consuming and risks important details being overlooked.
InfoTrack’s Property Report helps firms address this challenge by automating key parts of the reporting process:
- Extracting and pre-populating covenant data directly from title documents.
- Providing CQS-compliant restrictive covenant reporting templates.
- Offering indemnity wording and frequently used covenant clauses.
- Reducing manual work while ensuring clients receive clear, tailored advice.
By streamlining covenant reporting, Property Report reduces administrative burden, minimises the risk of oversight, and supports solicitors in delivering timely, accurate advice.
Conclusion
Restrictive covenants remain a source of complexity in residential transactions, requiring solicitors to balance legal expertise with practical client advice. Conveyancers must identify enforceability, evaluate client risk, and provide practical advice to ensure risks are properly managed.
Technology now plays a vital role in this process. Tools like Property Report automate the extraction and reporting of covenants, alongside easements, rentcharges, and permissions, giving conveyancers the confidence to deliver accurate property reports quickly and consistently.
To learn more about how Property Report can help your firm, download InfoTrack’s brochure [3] today.