Q: I would like to develop part of my smallholding for housing and in fact have had a couple of builders knocking on my door suggesting a joint venture with them. The problem is that there is a restrictive covenant on the land. Is it possible to get it removed and how would I go about it?
A: Firstly you should establish whether the covenant specifically applies to development and also who the beneficiary is. If the land is registered you will be able to check on the title deed held at the Land Registry, otherwise it will be registered as a D2 land charge which you will find on the Land Charges’ register.
If the covenant does relate to a development restriction you will need to contact the beneficiary and negotiate terms if you want to have it discharged. If you do not do this the beneficiary could take out an injunction that halts the work or even results in the demolition of the work. Getting a restrictive covenant removed does not affect getting planning consent, which of course also may be a difficult hurdle in itself to negotiate. However, quite often it is the planning application itself that triggers the discovery of a restrictive covenant, the terms of which can then be enforced by a court.
Whilst you can take out indemnity insurance to protect yourself against attempts to enforce a covenant, this is not possible if an issue surrounding the enforcement of the covenant has already been raised. As the process for discharging restrictive covenants can have significant financial consequences, it is advisable to seek advice from a lawyer who specialises in agricultural matters at the outset. An initial consultation can provide you with a clear view on the enforceability of the covenant and also help you fully understand your negotiating position.
(Article June 2018)