Problems found after you bought · Restrictive covenants
When I bought this property, I didn’t know A restrictive covenant could hold up a sale or a remortgage. Now I’m stuck.
Would you have bought the property if you had known?
If you had known about the restrictive covenant before you committed, and understood the problems it could cause when you later came to sell or remortgage, would it have changed your decision?
- Would you have paid the same price?
- Would you have wanted it investigated first?
- Would you have walked away?
If knowing about the problem might have changed what you did, the next question is obvious.
Did you receive the right advice when you bought?
You may not know the answer yet. But if nobody explained the problem, or you are now questioning what you were told at the time, that is worth looking at.
You don’t need to know whether anyone was at fault. Tell us what happened and when you bought. We’ll talk it through with you.
Why a restrictive covenant can hold up a sale or remortgage
A restrictive covenant on a freehold property is a promise about what cannot be done with the land: for example, not to build without consent, not to run a business from the house, not to park a caravan on the drive. It may continue to bind the property after its original owners have sold, which is why one imposed many years ago can still matter. Missing paperwork can itself cause difficulty: the register may refer to an older deed for which no complete copy can be found.
A sale or remortgage can be held up even where nothing has been done that the covenant prohibits. On a sale, the buyer’s solicitor will usually need enough information to advise the buyer and comply with any applicable lender requirements. The relevant questions are what the covenants actually say, whether they still bind this property, which land has the benefit and who might be entitled to enforce. Where the answer cannot be established from the documents, that uncertainty is itself the problem. Requirements differ between lenders.
Whether something has already been done in breach of a covenant is a separate question, dealt with under restrictive covenant breach.
How the problem usually surfaces
The register refers to restrictive covenants
The register sets out the restrictions or refers to an older deed. The immediate questions are whether the complete wording and any plan can be obtained, what land is affected and what the restrictions mean.
It restricts use, not just building
Covenants can control how a property is used as well as what may be built: a business at home, a trade vehicle, a caravan or a sign may all be covered.
The wording cannot be pinned down
A copy exists but the words are hard to read, incomplete or so widely drafted that nobody can say what they actually restrict.
The plan or extent is unclear
It cannot be established which land the covenant burdens, or whether your property falls inside it at all.
You are planning work
You want an extension or a change of use and need to know whether the covenant requires someone’s consent before anything is done.
The deed itself is missing
The register refers to an older deed, but no complete copy can be found. You may know restrictions exist without establishing their wording, their extent, or who could enforce them.
What you can do about it now
Start with the wording. Ask your conveyancer to obtain the deed or filed copy the register refers to, and to establish what the covenants actually say. Where only part survives, the register entry itself may summarise the substance, so the position is not always as bad as a missing deed suggests.
Then establish whether it binds and who benefits. That means asking whether the covenant was properly imposed, whether it still binds your property, which land was intended to have the benefit, and whether anyone entitled to enforce can be identified from the documents. These are questions of general law as much as of paperwork, so they need advice rather than assumption.
If you are contemplating work or a change of use, establish before you start whether the covenant requires anyone’s consent. Planning permission and building regulations approval are separate: neither provides consent under a covenant. Do not approach whoever may hold the benefit before taking advice, because an approach can produce an objection where there was none.
If you are selling, your conveyancer can ask the buyer’s solicitor what remains unresolved and whether it arises from the buyer’s lender’s requirements. If you are remortgaging, your conveyancer can check your proposed lender’s requirements directly.
What happened when you bought?
A restrictive covenant may have affected the property when you bought, even if nobody explained it to you. It may have been set out in the title register or contained in an older deed referred to there. In some cases that deed is missing, incomplete or difficult to interpret. The questions are which documents were available, whether the complete wording and any relevant plan were obtained, whether it was established that the covenant bound the property and what you were told about its practical effect.
Several records from the time may matter, and some may survive. The register as it stood may show the entries available when you bought. The deed imposing the covenant may provide its complete wording, identify the original parties and contain a plan. Your instructions or correspondence may show whether you mentioned any intended work or use of the property. Your report on title may record what the covenant was said to mean, while the conveyancing file may show what investigation was undertaken. The lender’s historical written instructions may also be difficult to recover because they are revised regularly and superseded versions disappear from ordinary public view.
Was this property really mortgageable when you bought?
Getting a mortgage when you bought does not necessarily tell you how readily mortgageable the property was across the wider market. There are two historical questions worth asking.
What did your own lender’s written requirements say about restrictive covenants when you bought? And what express requirements did other lenders have recorded at the same time?
Lenders’ written requirements were not necessarily uniform, and their wording changed over time. That means both which lender you used and when you bought can matter.
Lenders set out in writing what they expect a conveyancer to do about particular features of a property. Those instructions are revised regularly, and superseded versions drop out of public view, which can make a question as simple as what was my conveyancer told about restrictive covenants in the year I bought? surprisingly difficult to answer from the sources available today. Lexsure has retained historical lender-specific conveyancing requirements since April 2007, so where the records permit they can help reconstruct what your lender’s requirements said at the time and how that compared with the wider lending market.
The wider picture
Historical lender requirements can help us understand how mortgageable the property was when you bought. The conveyancing file and the advice given to you also matter.
Lexsure holds historical Report on Title material: the reports conveyancers sent to homebuyers, going back years. That material shows the kinds of restrictive covenant issues that were being addressed when firms reported to buyers, and it is a second and separate record from what lenders required.
Whether the covenants could be read
Was a deed referred to on the register missing or incomplete, so the wording was unknown, and were you told what was done about that?
Whether it was established that it binds
Was it established that the covenant still bound the property, rather than simply reported as appearing on the title?
Who has the benefit
Was any attempt made to identify the land with the benefit, or anyone who might be entitled to enforce?
Whether future works were flagged
Were you told that covenants which do not bite today could matter again if you altered the property or changed how it is used?
Whether the effect on selling was explained
Were you told that the covenant would remain on the title and could be raised again on a future sale or remortgage, and could matter to a buyer’s lender?
These are examples of issues addressed in historical conveyancing material, not a checklist of what every purchaser should have been told. What mattered in an individual purchase depended on the circumstances and on what was known at the time.
So even if your mortgage completed, or there is nothing unusual in your lender’s historical requirements, it can still be worth talking to us about what happened.
Could this problem have been seen coming?
The relevant starting point is what was known, or could reasonably have been identified, when you bought.
What did the title show? Was the complete wording obtained? What was in the conveyancing file? What were mortgage lenders requiring at the time? What kinds of restrictive covenant issues were conveyancing firms addressing with homebuyers? And what were you actually told?
Taken together, that can help build a picture of whether the problem you are facing today was already something that should have been considered when you bought.
Did you receive the right advice?
What the historical evidence can tell us
Where the relevant lender and period are covered, we may be able to establish what that lender’s conveyancing requirements said when you bought, and how that compared with the wider record at the time.
- That does not by itself establish that anyone was negligent, or that you have a claim. Those questions need the original file and legal advice.
- The absence of express wording does not establish that the lender accepted the issue.
- What your conveyancer had to tell your lender and what they had to tell you are different questions, and the second depends on the retainer and the circumstances.
Time limits apply, and in some cases the date on which you first knew enough about the problem matters as well as the date you bought, which is why we ask about both. Our full methodology, including how we treat gaps in the record, is set out in the archive and its limits. Where a solicitor later needs formal historical evidence, Lexsure can provide source-evidenced historical lender information.
Sources and review
This page is about identifying a restrictive covenant affecting freehold property and establishing what it means. Where something has already been done that may breach a covenant, see restrictive covenant breach. Restrictions contained in a lease are a different matter, and the position on enforcement and remedies can differ. Guidance here about the present problem is general information. It is not legal advice about your property.
Historical lender information is drawn from Lexsure’s archive of lender-specific conveyancing requirements, maintained since April 2007. Figures on this page state the population they are drawn from.