What is a Covenant?

For the purposes of UK Land Law, a covenant is basically just a contractual right governing what can and cannot or must and must not be done on the land which is affected by (burdened with) the covenant.

In other words, a covenant might prohibit you from using land for a specific purpose (such as storing a caravan for example). This is generally referred to as a negative covenant or a restrictive covenant. A covenant might also be positive in nature. In practice this usually takes the form of a covenant to maintain, repair or redecorate for example.

Sometimes a covenant might seem to be restrictive in nature and therefore a negative covenant but actually be a positive covenant and vice versa. For example, a covenant “to use the property only as a residential dwelling” is, on first reading a positive covenant to use a property a certain way. However, in practice it is actually a restrictive covenant not to use the property for any other purpose than a residential dwelling.

The reason that it’s important to be able to identify what is a positive covenant and what is a negative/restrictive covenant is because not all covenants are always enforceable and the way these covenants pass with a property’s title varies, dependent on whether a covenant is positive or negative. Where a property is registered covenants must be registered on the title entry on the Land Registry.

For a covenant to continue to be enforceable after the original parties have parted with the land involved, both the benefit and the burden must “run with the land”. The rules which dictate whether the benefit and burden run differ depending on whether the covenant is positive or negative. The tests applied to establish whether a covenant is enforceable are set in Equity and Common Law. For more details click here.

Furthermore, there are circumstances where a covenant might become outdated or otherwise unenforceable. In such circumstances under S84(1) of the Law of Property Act 1925, an application may be made to the Lands Chamber of the Upper Tribunal (formerly the Lands Tribunal) to remove or modify a covenant.

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