‘Whether it is an unsightly extension, the operation of a noisy business, or a failure to maintain a shared boundary, disagreements over covenants can escalate quickly, especially if the parties are unsure of their rights,’ says Sarah Grantham, Trainee Legal Executive in the dispute resoluttion team with QualitySolicitors Parkinson Wright. ‘This is why early advice from an experienced solicitor is essential – without professional guidance, homeowners risk misinterpreting their rights, missing critical deadlines, or pursuing remedies that the court may ultimately refuse to grant.’
‘To understand your position in a dispute, it is first necessary to distinguish between the two primary types of covenants: restrictive and positive,’ Sarah continues. ‘A restrictive covenant is a promise to refrain from doing something on the land, while a positive covenant requires a landowner to take active steps or spend money to achieve something.’
Restrictive or positive covenant?
Common examples of a restrictive covenant include prohibitions against running a business from a residential property, building above a certain height, or keeping livestock. The primary advantage of a restrictive covenant is its longevity and power; it is designed to preserve the character of a neighbourhood and protect the value of surrounding homes. On the downside, restrictive covenants can sometimes feel antiquated, preventing modern improvements that would otherwise be sensible.
A positive covenant might include a duty to maintain a shared boundary fence, repair a private access road, or contribute to the upkeep of common garden areas. The benefit of a positive covenant is that it ensures necessary maintenance is performed, preventing the area from falling into disrepair. However, the downside of positive covenants is that they do not ‘run with the land’ in the same way as restrictive ones.
Running with the land
The ‘run with the land’ rule is the legal mechanism that determines whether a restrictive covenant passes from the original owners to whoever buys the property next. For a restrictive covenant to bind subsequent landowners, it must ‘touch and concern’ the land itself rather than being a personal agreement between two individuals. It must also be registered correctly against the property’s title at the Land Registry.
When a covenant runs with the land, it becomes a permanent feature of the property, enforceable by and against future owners. Understanding this usually requires a solicitor to trace the chain of title and examine historical deeds. Attempting to interpret these chains without legal expertise often leads to the mistaken belief that a covenant is enforceable when it may have lapsed.
Grounds for dispute: when the rules are broken
Disputes generally arise when a neighbour’s actions infringe upon the specific protections laid out in the deeds. A frequent ground for conflict is a breach of use. If a property is restricted to ‘private residential use only’ and a neighbour begins operating a commercial garage, a short-term holiday let business, or a noisy workshop, then they have breached the covenant. While the breach might seem obvious, the legal threshold for what constitutes ‘business use’ in an era of remote working can be subtle, requiring a solicitor to apply recent case law to your specific circumstances.
Unapproved alterations form another major category of dispute. Many modern deeds require a homeowner to obtain the ‘covenantee’s consent’ before making external changes, such as building an extension, erecting a shed, or even changing the colour of the masonry. If a neighbour builds a structure that blocks your light or spoils the aesthetic of the street without following this process, they are in breach. In these cases, timing is critical, as allowing a neighbour to complete a project without objection can weaken your legal position.
Vagueness or ambiguity in the wording of a covenant can fuel further disagreement. Older deeds may use subjective language, such as prohibiting ‘any nuisance or annoyance’ or ‘offensive trades’. What one neighbour considers a minor annoyance; another may find intolerable. Because these terms are not always defined within the deed, a solicitor must interpret them through the lens of historical legal precedents to determine if the neighbour’s behaviour actually constitutes a breach.
Finally, a neighbour may defend their actions by claiming obsolescence. They might argue that because the neighbourhood has changed so much since the covenant was written, the rule no longer serves any purpose. For instance, a ban on shops in a street that is now primarily commercial may be viewed as obsolete. Defeating an obsolescence claim requires a solicitor to prove that the covenant still provides a ‘substantial benefit’ to your property.
Remedies: rectifying the breach
When a breach is established, the legal system offers several paths to resolution. The most sought after remedy is an injunction. This is a court order that either stops a neighbour from continuing a breach (a prohibitory injunction) or forces them to undo what they have done, such as demolishing an unauthorised extension (a mandatory injunction).
However, injunctions are discretionary – meaning the court is not obliged to grant one. If the court feels the breach is minor or that you waited too long to complain, they may refuse the injunction. A solicitor’s role is to present a compelling case that shows why an injunction is the only fair outcome.
If an injunction is not granted, the court may instead award damages – a financial payment intended to compensate you for the loss of amenity or the reduction in your property’s value caused by the neighbour’s breach.
In some complicated cases, the court uses the ‘Wrotham Park’ basis for damages, which calculates the amount the neighbour would have had to pay you in a hypothetical negotiation to release them from the covenant. Calculating these figures accurately requires expert valuation and legal know-how.
Another potential outcome is the modification or discharge of the covenant. A neighbour who wishes to break a covenant may apply to the Upper Tribunal to have it legally removed or altered. If you are the person who benefits from that covenant, you have the right to object. This is a high-stakes legal battle where the tribunal will decide if the covenant is still useful. Without a solicitor to represent your interests in the tribunal, you risk losing a valuable right that could permanently devalue your home.
How our solicitors can help
The process begins with deed interpretation. Our solicitors will locate the key documents, interpret archaic language, and confirm whether the covenant is legally ‘live’. They can identify if you have the right to enforce it, saving you the cost of pursuing a claim that has no prospect of success.
When a breach is confirmed, your solicitor will handle enforcement action. This usually starts with a formal letter before action. This document carries significant weight, signalling to your neighbour that you are serious and prepared to take the matter to court. Often, this professional intervention is enough to settle the matter without ever stepping into a courtroom.
Furthermore, if you are the one accused of a breach, a solicitor can advise on indemnity insurance. This is a specialist policy that can cover legal costs and loss of value if a covenant is enforced against you. However, insurance must be handled delicately; if you contact the neighbour about the covenant before the policy is in place, you may find yourself uninsurable.
Alternatively, our solicitors are expert negotiators and they can lead mediation or settlement discussions, finding creative solutions without having to go to the trouble and expense of going to court. For example, they might negotiate a ‘deed of variation,’ where the neighbour pays you a lump sum in exchange for a limited relaxation of a covenant. This allows you to resolve the matter while maintaining a congenial relationship with your neighbour.
Finally, if your neighbour attempts to lift a covenant through the Upper Tribunal, we will gather the necessary evidence, instruct expert surveyors, and present a robust defence to ensure your home remains protected by the rules you relied upon when you bought it. Property law is a minefield of technicalities; having a solicitor ensures you have the right map to navigate it safely.
For further information, please contact Sarah Grantham or a member of the dispute resolution team on 01905 721600 or via email worcester@parkinsonwright.co.uk
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.