Disputes may arise when one neighbour wishes to enforce a restrictive covenant against another. The ability of a neighbour to enforce a restrictive covenant depends on the specific circumstances and legal framework in the relevant jurisdiction. Restrictive covenants, which are binding obligations or conditions associated with property transfers, can be enforced by parties with a legitimate interest in their enforcement, such as neighbouring property owners or homeowners’ associations.
What are restrictive covenants?
Restrictive covenants are legal agreements that impose certain restrictions on the use of land or property. They are often included in property deeds and aim to maintain the character, value, and overall harmony of a specific area or development.
Are restrictive covenants legally enforceable?
Restrictive covenants are legally binding agreements that can be enforced, provided they meet certain requirements. To determine the enforceability of a restrictive covenant, several factors are considered:
Is it valid?
For a restrictive covenant to be enforceable, it must be valid. This means that it should have been properly drafted, executed, and registered, if necessary, at the time of its creation. It should also adhere to any applicable laws or regulations.
Intent and Benefit
The restrictive covenant must have been intended to benefit a specific individual or group, often referred to as the “beneficiary.” The benefit derived from the covenant should be clear and identifiable.
Touch and Concern the Land
A restrictive covenant should relate directly to the land or property in question and not merely to personal preferences or circumstances. It should have a genuine connection to the use, enjoyment, or value of the land.
Reasonableness
To be enforceable, a restrictive covenant must be reasonable in its scope and restrictions. The court will consider factors such as the purpose of the covenant, the nature of the restriction, and the impact on the affected parties.
If these criteria are met, a neighbour can enforce a restrictive covenant against another party, provided they have the legal standing to do so.
What happens if you ignore a restrictive covenant?
Ignoring a restrictive covenant can lead to various legal consequences. The party enforcing the covenant, such as neighbouring property owners or homeowners’ associations, may initiate legal action seeking an injunction to stop the violation and potentially claim monetary damages. A court can issue an injunction requiring the party in violation to comply with the covenant’s terms, and failure to comply may result in fines or even imprisonment. Additionally, the party enforcing the covenant may seek compensatory or punitive damages. In some cases, a court may order the reversal of actions that contravene the covenant, requiring the removal of structures or restoration of the property. It is important to consult with a legal professional to understand the specific implications of ignoring a restrictive covenant in your jurisdiction.
While the consequences may vary depending on the circumstances and jurisdiction, here are some potential outcomes:
Court Proceedings
If a neighbour believes that a restrictive covenant is being violated, they may choose to take legal action.
Injunctions
If a court determines that a restrictive covenant has been breached, it can issue an injunction to prevent further violation and compel the party to comply with the covenant’s terms. Failure to comply with an injunction can result in further legal consequences, such as fines or even imprisonment in extreme cases.
Remedies and Damages
The court may award remedies to the party seeking enforcement, which can include compensation for any loss or damages suffered as a result of the covenant breach. The extent of the remedies will depend on the specific circumstances of the case.
Rectification or Modification
In some cases, the court may consider modifying or rectifying a restrictive covenant if it deems it necessary or fair to do so. This can happen if the covenant is found to be unreasonable, obsolete, or if circumstances have significantly changed since its creation.
Restrictive covenants can indeed be legally enforceable, provided they meet the necessary criteria and are valid. Ignoring a restrictive covenant can lead to legal consequences, including legal action, injunctions, remedies, and potential damages. It is essential to understand the terms and obligations of any restrictive covenant associated with your property to avoid disputes with neighbours and potential legal complications.
What should I do if I receive a restrictive covenant from a neighbour?
If you find yourself facing a situation involving a restrictive covenant, it is advisable to seek legal advice from a qualified professional who specialises in property law. They can guide you through the process, help you understand your rights and obligations, and assist in finding a resolution that is fair and equitable for all parties involved.
By Emily Skillcorn, Solicitor
