There are many title matters that can restrict what you can do with your commercial property. Whether there is a covenant which prevents you from using your commercial property for certain purposes, or an easement that needs to be moved before development can take place, our litigation team is happy to advise and assist you. Some of the main types of property restrictions that we regularly advise on our set out below:
Easements
An easement is a right which benefits a piece of land that is enjoyed over land owned by a different party (usually the neighbouring land). Easements are often integral to how a piece of land ‘works’. Common easements include:
- A right of way over neighbouring land;
- A right for drainage and other service media over neighbouring land;
- A right of access for maintenance purposes; and
- A right to light (which is considered in more detail below).
Easements can be created by express grant or by long use (called “prescription”).
The law surrounding easements is both vast and complex, and we can advise clients on whether they enjoy the benefit, or are subject to the burden, of an easement, how that easement may be interpreted, and how rights can be enforced.
Rights of Light
A right of light is a form of easement under which a property owner can enjoy an entitlement to receive light through his or her windows from the adjoining property.
This can lead to disputes where the adjoining owner wishes to carry out development which would block this established right of light. Such disputes can lead to claims in court for injunctions and for damages. Such claims are particularly prevalent in crowded city centre areas, but they can occur anywhere and anyone wishing to carry out development or rebuilding of any kind needs to be aware of the sort of problems which they can run into. This is a specialist area on which we can advise clients.
Restrictive Covenants
A restrictive covenant is a legal obligation restricting the use and enjoyment of the land which it covers. For example, a restrictive covenant may:
- Restrict any buildings or structures from being built on a piece of land;
- Prevent a homeowner from extending their property; or
- Restrict a property from being used for anything other than residential purposes.
Restrictive covenants bind the owners of the land, even where the land is sold, so that new owners will also be bound by these covenants.
Enforcement
Only the beneficiary of a restrictive covenant can enforce it. Beneficiaries may include successors in title to the land and neighbouring landowners or entities which are specifically named in the covenant. Just because a person lives next door to the land does not mean that they are entitled to enforce the restrictive covenant.
In order to enforce a restrictive covenant, the beneficiary must also have a direct interest in the property that enjoys the benefit of the restrictive covenant. Our expert team can undertake title reviews and advise you on covenant enforceability. They can also help you to take steps to enforce covenants, if they are being breached.
Discharge, modification or release of a restrictive covenant
If you are the owner of land, or are thinking of buying land, which is subject to a restrictive covenant, there are options available to you in terms of removing or modifying the covenant.
It is important, initially, to check who is the current beneficiary of the covenant. It may be that insurance can be obtained against the risk of the beneficiary enforcing the covenant or that you can negotiate a release or variation of the covenant and our real estate colleagues will often assist clients in securing title insurance policies when assisting them with their property transactions.
If you consider that the restrictive covenant is now obsolete, there is also the possibility of challenging it by way of an application to the Upper Tribunal (Lands Chamber) for a modification or a discharge of the covenant.
Restrictive covenants can be complex both as to the determination of who the beneficiary of the covenant is and as to its enforceability. Land Law LLP has experience in all matters related to restrictive covenants. If you require advice about a restrictive covenant, please contact our litigation department who will be happy to assist.