The arc of the restrictive covenant

I am acting for a number of clients who own land affected by dynastic covenants imposed over 100 years ago to preserve a degree of exclusivity as large estates were subdivided and developed.  Issues arise from minimum plot sizes, requirements for consent for development and a cottage industry seeking to enforce covenants that now link back to titles that have long since become so fragmented that there is little if any of the original purpose left.

The path of these covenants is familiar; imposed to preserve what was seen as a valid concern, preserving the ambience and exclusivity of the area, they are in many cases now viewed as the preservation of the prejudices of a conglomerate of Hyacinth Buckets.

The history of land law in Britain has been a tension between those who wish to control land long into the future and the need to recycle what is a finite resource.  Historians and insomniacs can look up the ban on subinfuedation in 1290 as an early example of this process in action.

Restrictive covenants are a useful tool in balancing these competing interests but that balance is coming under pressure from the urgent and ever increasing demand for new homes.  It begs the question whether restrictive covenants ought to have a built in expiry date.

We and our clients are working on Lands Tribunal applications to seek variations to these covenants or complete removal and on current evidence that is going to be an ever increasing process.

This is likely to become a critical part of the delivery of the homes we need so watch this space...