When a Covenant May Be More Than it Seems

If you own or buy a property, you may find that there are covenants which apply to it, a covenant being a requirement to do something or refrain from doing something with your property. A covenant will benefit other property in the vicinity.

Typically, a covenant may be something like refraining from developing or adding to a property or a prohibition from using it for specific purposes. Covenants are often included when a property is sold out of a larger land holding.

It might appear that if you know what property was owned by the person benefiting from the covenant when you bought the property that was subject to it, you would know its limits, but a recent decision shows this is not quite correct.

The owner of a parcel of land had a covenant over the property preventing any development that would interfere with the view over Green Belt land from adjacent land. The problem arose when the owners of the land that benefited from the covenant bought additional land and then claimed that the covenant should apply to the whole of the land they owned, not just the land they owned when the covenant was first put in place. The Upper Tribunal (UT) ruled in their favour.

In a subsequent case, the UT made the point that the purpose of a covenant is to secure practical benefits for the owner of the land benefiting from it. The UT noted that statute does not limit the application of a covenant by reference to particular land. A covenant will apply to the person objecting to its breach, if they are entitled to and do receive a practical benefit from it.

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