It’s a scenario that could affect any home: the freedom to adapt, extend, or improve it to suit your life. But a single clause in a decades-old covenant could forbid even the simplest extension or shed, no matter what planning law says.
A recent query on the Bold Legal Group forum reveals just how challenging these issues can be.
A plot of land was sold with a covenant requiring the buyer to build a house exactly as specified in an attached planning permission. The house was duly built, but a further covenant states that “no building or structure shall be erected on the Property except in accordance with the Planning Permission”—and defines this permission as the original grant and any “variation” to it, if approved by the original developer.
The original planning permission was fully implemented. Therefore, any new works would technically be a new application, not a “variation”, or might even be classed as “permitted development” that normally wouldn’t require consent at all. But the covenant’s strict wording appears to bar any change without this elusive “variation.”
On its face of it, the clause amounts to a ban on all future development unless it fits within the rigid confines of the original consent. This means that a modest kitchen extension, a garden office, or a small conservatory could result in a breach. Another issue is the apparent conflict between the covenant and planning law: what about the homeowner’s statutory right to build under permitted development? The covenant appears block that right unless it could be challenged as unreasonable or contrary to public policy.
This scenario highlights the developer’s wish to control the look and feel of an estate after the final plot has been sold, and the homeowner’s desire to improve the property they own.
A covenant like this one effectively freezes the style, shape, and layout of a property. Personal situations change often, and more and more property owners now want home offices, accessible layouts, or sustainable value increasing improvements. Should, on the face of it, a simple clause prevent them from doing so, potentially forcing them into costly legal battles or protracted negotiations with the original covenantee (who may not even have a real stake in the neighbourhood anymore)?
For property buyers and conveyancers, this is a stark reminder: read all covenants as if they matter. A single word can spell the difference between flexibility and frustration. For legal drafters, it’s a lesson in the law of unintended consequences. Clauses meant to protect can, if too rigid, become a straitjacket that holds no benefit for anyone.
As we face a housing crisis and the climate situation pushes us to improve homes, do we really want covenants that effectively stifle sensible improvements?
Covenants like this one begs the question: where should the line be drawn between legitimate control and individual freedom for property owners.
Perhaps it’s time we rethought what restrictive covenants are really for (what are they really for?) and whether they should ever stand in the way of people developing their homes to suit their 21st century requirements.
Rob Hailstone is founder and CEO of Bold Legal Group. These discussions are one of many taken from the BLG Forum, a voluntary forum of over 2,000 professionals covering a range of conveyancing-related topic topics with input from compliance experts, SDLT experts and HMLR.
