What is a restrictive covenant
Various covenants may be written into contracts of title to property protecting the rights of neighbours, the public or perpetuating ancient agreements. Such items could be right of ways, size of windows overlooking neighbouring property or height of building.
Purchasers of property should be told of any restrictive covenants by their lawyers at the time of passing contract. Should any development take place, any covenant must be adhered to.
What if a covenant is broken
If a client realises that a covenant may have been broken, they should notify their lawyer immediately. The other party involved will be informed by the lawyer when a decision has been taken as to what further action to take. The client should not raise the issue with the neighbour until they have spoken to their lawyer.
If a property vendor discovers that work has been done to the property which contravenes a covenant, there will be a hold up in the conveyancing. It is often the purchaser’s lawyer who makes such a discovery. There are three ways to overcome the difficulty:-
- The building contravening the covenant could be demolished or altered.
- A defective title indemnity could be obtained from a specialist insurer which would provide cover in the event of litigation for damages against the vendor.
- It may be possible to get the agreement of the people whose benefit from the covenant has been contravened for the contract to go ahead with the building remaining (a sum of money may become involved).
Impossibility of challenge after forty years
Most Jersey lawyers believe that provided a building has been in unaltered structural existence for forty years or more, without people with the benefit of the restrictive covenant taking legal proceedings, then the building cannot be challenged. The covenant would still exist and any further alteration could be the subject of action up to another forty-year period.