If you’re currently acquiring land with a view to redeveloping it, you may be worried about a restrictive covenant affecting the land. It is important to ensure you have a clear understanding of what impact the restrictive covenant might have. Restrictive covenants prevent certain actions being taken by a land owner with a view to protecting the value and enjoyment of neighbouring land.
Restrictive covenants can be daunting for developers as they can impair the value of the land. However, it is possible to have a restrictive covenant removed if certain conditions are satisfied. This right is an important one to be aware of and the case of HAE Developments Ltd v The Croft Ealing Ltd is a recent example.
In this case, a developer was granted planning permission to construct a three-storey building containing eight flats upon the land which was subject to a restrictive covenant. The restrictive covenant was imposed in 1955 when the adjoining land had a large Victorian dwelling upon it as well as having extensive grounds. The covenant restricted construction on the site to a single dwelling and prevented development to ensure that the value and enjoyment of the adjoining land owners was preserved. As it turns out, the adjoining land had been redeveloped into flats and maisonettes since the covenant was imposed.
The court decided that the restrictive covenant should be released. The environment surrounding the land had changed since the restriction was imposed, including the redevelopment of the land with the benefit of the covenant.
This case is a prime example of the courts willingness to discharge restrictive covenants where they consider the covenant no longer serves its original purpose. The case also confirmed that there must be some practical benefit secured by the covenant for it to be enforceable as well as taking into account the fact that a party should not be entitled to object to a development occurring on adjoining land when the same development has taken place on their land.
Ultimately it depends upon the nature of the restrictive covenant and the facts of the individual circumstances. When faced with a restrictive covenant please consider that there are circumstances in which it may be possible to remove the covenant.