Property owners generally enjoy an unrestricted right in the use of their property. As such, they are free to use their property however they choose, including making changes to the external features of a building and the natural surroundings.
However, in some instances there are exceptions to this general rule. One such instance includes where there are restrictive covenants in existence over a property. It is therefore worthwhile, before investing in property or before carrying out any work to the exterior of the property or surroundings, that property owners acquaint themselves with any covenants governing the use of their property, as they will determine what owners can and cannot do with the property.
What is a restrictive covenant?
In property law, a restrictive covenant is an “agreement acknowledged in a deed or lease that restricts the free use or occupancy of property, such as forbidding commercial use or certain types of structures.” Restrictive covenants may apply to a home or lot, a group of homes or lots, such as those found in a housing development or sub-division.
Restrictive covenants may be registered against the title to a property or included in lease agreements between landlord and tenants. They are usually imposed by the developers, homeowners associations or the planning authorities. They are commonly attached to homes sold within developments and are aimed at achieving different purposes. Unless discharged or modified, restrictive covenants usually run with a property. Therefore, a proprietor who purchases a parcel of land is bound by any covenant in existence at the time of purchase.
Purpose of restrictive covenants
While certain covenants might place a burden on the proprietor; they can operate to their benefit as well. By prohibiting certain activities, they operate to reserve the value of a property and secure the investment.
Restrictive covenants give a housing development a standard homogenous appearance and control activities that take place on or within the boundaries of the property and what homeowners can do with the natural surroundings.
Restrictive covenants may address a number of areas, including
• Additions to the property.
• Height of the building or fences.
• Minutiae matters such as the color of a building exterior, exterior decorations, parking, pets, landscaping etc.
• In the case of commercial property, the nature of the business to be carried on from the premises. Often where several businesses operate from the same premises, covenants are designed to prevent businesses operating in direct competition with each other.
• Restrictive covenants nearly always stipulate the minimum size residence allowed, the number of homes and appurtenances on one lot, the nature of the constructions; e.g. the type of material used in constructing a home.
In order to determine whether any such restrictions exist over a property, a check of the Land Register for the particular parcel of land would prove useful.
A breach of a restrictive covenant may attract a monetary penalty, which can be avoided once a proprietor is aware of and abides by their requirements. It is therefore prudent that before carrying out any major work to their premises, particularly where the house forms part of a development, that homeowners reacquaint themselves with any such restrictions over their property.
Disclaimer –The information contained in this article is for general information only. This information is not provided as advice for a specific matter and should not be construed as legal advice; neither does its publication create any attorney-client relationship. The application and impact of laws can vary widely based on the specific facts involved. You should consult with an attorney-at-law to obtain advice with respect to any particular issue or problem you might have.
